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Abbott v. Taz Express11/9/1998
y" disregard any expert testimony, presumably including Bonneau's. Without such an admonition, plaintiff reasons, the jury may have felt free to capriciously ignore Bonneau's numbers.
The court gave BAJI No. 2.40 on expert testimony, but omitted the bracketed fourth paragraph: "However, you may not arbitrarily or unreasonably disregard the (medical, scientific, etc.) opinion testimony in this case." (BAJI No. 2.40 (8th ed. 1994 bound volume) p. 42.)
The court correctly declined to give the bracketed material. The accompanying use note cautions that this fourth paragraph should be stricken "if the facts on which the opinion is base are in dispute, or the underlying facts are . . . capable of being rejected by the jury as untrue or unproven." (Use Note to BAJI No. 2.40 (8th ed. 1994 bound vol.) p. 42.) As we have indicated above, the facts underlying Bonneau's testimony (namely the extent of plaintiff's ability to remain at her job ) were contested. (See also Conservatorship of McKeown (1994) 25 Cal.App.4th 502, 508-509.)
Further, there was no likelihood the omitted language prejudicially affected the verdict. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 984 [affirming verdict despite erroneous burden-shifting instruction].) The jury was instructed generally with BAJI No. 2.20 on how to evaluate the credibility of witnesses: " iven the fact instructions must be considered as a whole and not by the individual paragraphs or sentences" (Conservatorship of McKeown, supra, 25 Cal.App.4th at p. 507), the jury was not misled. There was no miscarriage of Justice. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 983.)
The judgment is affirmed. Costs on appeal are awarded to Taz Express.
WE CONCUR:
WALLIN, ACTING P.J.
RYLAARSDAM, J.
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