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McCall v. Nicholas1/30/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Cathleen McCall appeals from a jury verdict that awarded her $38,000 for injuries she received during an incident involving Sherry Nicholas's dogs. At trial, McCall asked for $130,000 for medical expenses, $353,000 for lost income (assuming McCall has surgery and goes back to work), and additional damages for pain and suffering. Nicholas did not dispute liability for the incident, but disputed the nature and extent of McCall's injuries and damages from lost earnings.
McCall contends (1) the court abused its discretion by (a) admitting evidence of McCall's character and reputation; (b) admitting expert testimony by a physical therapist; (c) allowing Nicholas to add to the witness list prior to trial; and (d) refusing to allow McCall to call a medical expert as a rebuttal witness. McCall also contends (2) defense counsel committed prejudicial misconduct during closing argument; and (3) the damages are inadequate as a matter of law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 1997, McCall was injured while trying to separate her dog from Nicholas's two Labrador retrievers who had entered McCall's back yard.
McCall testified that in 1989 or 1990, she injured her back lifting a computer out of the trunk of her car. Thereafter, she would have pain for one to two days after lifting something heavy.
After the dog incident, McCall went to Dr. Saglimbeni who sent her to physical therapy with Julie Blasius. After completing physical therapy, she consulted with Dr. Wieseltier, who recommended physical therapy and a chiropractor. McCall's attorney then referred her to Dr. Clarke. She also consulted with Dr. Van Dam, who recommended back surgery, which she had not yet had at time of trial. She was told she will not be able to work for about one year after the back surgery. She testified it will take about six months to rebuild her business after she returns to work. McCall admitted going on three ski trips during the winter of 1997-1998 and playing golf in 1998.
Dr. Aidan Clarke, a physiatrist who specializes in rehabilitation and pain management, testified that in June 1998 McCall told him that as a result of the dog incident, she had constant lower back pain that felt like a knife stuck into her back. She did not tell Clarke about her recent ski trips or golf games. She told Clarke she had completely recovered from the back injury caused by lifting the computer; she did not mention that she continued to have pain from that injury. Clarke testified these facts could be relevant to her current back problems.
Based upon his examination of McCall, Clarke testified that McCall's symptoms were caused by a sudden forceful twisting, bending or lifting motion. Tests showed bulges in two disks. Clarke performed a number of procedures on McCall's spine but her condition did not improve. Clarke determined that as a result of her back problems, McCall had lost about 60 percent of her ability to lift and 50 percent of her ability for normal physical activity, including her ability to work. On cross-examination, Clarke testified that disk bulges could result from normal aging.
Dr. Bruce Van Dam, an orthopedic surgeon, testified the dog incident triggered McCall's back problems. Van Dam diagnosed McCall as having a condition where the disk dries up and the disk wall prot
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