California Court of Appeal Mar 21, 2014 No. D063607Unpublished
Filed 3/21/14 McCullough v. Ellis CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GARY MCCULLOUGH, D063607
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2010-00072577-CU-PN-EC) KIM ELLIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eddie C.
Sturgeon, Judge. Reversed and remanded with directions.
Kim L. Ellis, in pro. per., for Defendant and Appellant.
Simpson-Moore and Charles E. Moore for Plaintiff and Respondent.
Defendant Kim L. Ellis appeals a judgment finding her liable to plaintiff Garry
McCullough in his legal malpractice action against her. At a bench trial, McCullough
argued Ellis was liable for her law partner's failure to timely file a personal injury action
against the driver and owner of the car his vehicle struck. On appeal, Ellis contends: (1)
the trial court erred by denying her nonsuit motion and/or entering judgment for
McCullough because he did not present expert opinion testimony on the element of
causation; (2) the evidence is insufficient to show any judgment that could have been
obtained against the car's driver or owner would have been collectable; (3) the trial court
erred by denying Ellis's motion for summary judgment based on McCullough's not
stating a cause of action against her; (4) McCullough did not have standing to pursue this
action after he filed a bankruptcy petition; (5) the trial court erred by not ruling on Ellis's
request to enforce McCullough's release of claims pursuant to his settlement agreement
with her law partner; (6) the evidence is insufficient to support the award of $3,300 in
lost wages; (7) the trial court abused its discretion by granting McCullough's in limine
motion to preclude Ellis from accusing him of bankruptcy fraud; and (8) the trial court
erred by admitting certain e-mails her law partner sent to McCullough. Because we
conclude McCullough did not present any expert opinion testimony on the element of
causation, testimony required in the circumstances of this case, he did not set forth a
prima facie case and the judgment against Ellis must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
On Friday, August 17, 2007, while McCullough was driving home from work, his
truck struck another vehicle that had made an abrupt u-turn. He returned to work the
following Monday. On Thursday, August 23, McCullough saw Diane Brooks, a nurse
practitioner at Dr. Ehlers's office, for pain he was suffering. He believes she told him to
obtain physical therapy or see a chiropractor, put ice on the affected areas, and take
medication.
2
On or about September 29, 2007, McCullough retained the law firm of Demanski
& Ellis PLC (Firm) to represent him in seeking compensation for injuries he allegedly
suffered in the August 17, 2007, accident. David Demanski of the Firm apparently was
in charge of the matter.
On October 8, 2007, when his pain had not resolved, McCullough saw his
chiropractor, Dr. Rhodes, whom he had previously seen for back pain from December
2006 through June 2007. He obtained treatment from Dr. Rhodes from October 8, 2007,
through September 29, 2008.
After the Firm apparently did not file a personal injury complaint before the
applicable statute of limitations expired, McCullough filed a legal malpractice complaint
against Demanski, the Firm, and "Doe" defendants. He subsequently amended the
complaint to add Ellis as a discovered Doe defendant. The trial court denied Ellis's
motion for summary judgment.
At a bench trial, McCullough presented his own testimony and the testimonies of
his wife and son and Dr. Rhodes. McCullough testified regarding the neck and back pain
he suffered after the August 17, 2007, accident and stated he was certain that pain was
caused by the accident. He testified he had previously been injured in a 2006 car
accident and was diagnosed with a bulging disc in his neck and back, but his complaints
arising from that prior accident had resolved before the August 17, 2007, accident. He
further testified that he suffered from various other medical problems, including
congestive heart failure, diabetes and gout, and has had three or four surgeries.
3
Dr. Rhodes testified regarding McCullough's multiple medical problems, including
two shoulder surgeries, knee surgery, angioplasty, a pacemaker, heart disease, diabetes,
and gout. Dr. Rhodes testified it was "possible" that the August 17, 2007, accident could
have caused McCullough's neck and back pain, but she could not state the accident was
the probable cause of that pain. Ellis then moved for a nonsuit, arguing McCullough had
not made a prima facie case on the element of causation. The trial court tentatively
denied that motion, stating McCullough still could call other witnesses and, when his
case-in-chief was complete, she could move for a nonsuit. Dr. Rhodes testified she could
not ascertain the cause of McCullough's symptoms for which she treated him from
October 8, 2007, through September 29, 2008.
After trial, the parties submitted additional briefing on the element of causation.
Ellis argued McCullough had not made a prima facie case because he did not present any
expert opinion testimony showing, within a reasonable medical probability, his neck and
back pain were caused by the August 17, 2007, accident. She argued she was entitled to
a nonsuit as a matter of law. In contrast, McCullough argued that lay opinion testimony
in the circumstances of this case was sufficient to prove causation. After considering the
evidence presented at trial and reviewing the parties' briefs on causation, the trial court
entered judgment for McCullough in the amount of $3,300 for past lost earnings and
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$25,000 for general damages, for a total award of $28,300 in damages. Ellis timely filed
a notice of appeal.1
DISCUSSION
I
Legal Malpractice Actions and Causation Generally
"The elements of a cause of action in tort for professional negligence are: (1) the
duty of the professional to use such skill, prudence, and diligence as other members of his
profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate
causal connection between the negligent conduct and the resulting injury; and (4) actual
loss or damage resulting from the professional's negligence." (Budd v. Nixen (1971) 6
Cal.3d 195, 200.) "An attorney's liability [for professional negligence], ' "as in other
negligence cases, is for all damages directly and proximately caused by his negligence." '
[Citations.] It is only where the alleged malpractice consists of mishandling a client's
claim that the plaintiff must show proper prosecution of the matter would have resulted in
a favorable judgment and collection thereof." (DiPalma v. Seldman (1994) 27
Cal.App.4th 1499, 1507.)
"In conducting the 'trial-within-a-trial' of a legal malpractice case, 'the goal is to
decide what the result of the underlying proceeding or matter should have been, an
1 On October 1, 2013, McCullough filed a motion to augment the record on appeal with a joint trial exhibit list and declaration of James E. King, which apparently were inadvertently omitted from the record on appeal. Ellis has not opposed his motion. We grant the motion to augment and consider the documents attached thereto to be part of the record on appeal.
5
objective standard.' " (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior
Court (2006) 137 Cal.App.4th 579, 585-586.) "In the legal malpractice context, the
elements of causation and damage are particularly closely linked. It is difficult to
consider a plaintiff's claim that the defendant attorney's proper handling of an underlying
matter would have resulted in a favorable judgment that could be collected, without
evaluating the amount of such a favorable judgment. The plaintiff has to show both that
the loss of a valid claim was proximately caused by defendant attorney's negligence, and
that such a loss was measurable in damages." (Id. at p. 591.) "[W]hen the attorney's
negligence lies in his failure to press a meritorious claim, the measure of damages is the
value of the claim lost. [Citation.] . . . '[A]n attorney's "liability, as in other negligence
cases, is for all damages directly and proximately caused by his negligence." ' " (Smith v.
Lewis (1975) 13 Cal.3d 349, 361-362.)
The "case-within-a-case" method applies only in certain legal malpractice actions.
(California State Auto. Assn. Inter-Ins. Bureau v. Parichan, Renberg, Crossman &
within a suit, a reconsideration of the previous legal claim, and only by determining
whether or not the original claim was good can proximate damages be determined."
6
[Citation.] This trial within a trial avoids the specter that the damages claimed by a
plaintiff are a matter of pure speculation and conjecture.' " (Ibid.)
Where the underlying case in a legal malpractice action is an action for negligence
(e.g., for personal injury damages), the plaintiff must prove that with proper legal
representation he or she would have obtained a favorable judgment in that action and the
judgment would have been collectable. In general, to recover personal injury damages
based on a negligence theory, a plaintiff must prove duty, breach of that duty, causation,
and damages. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674;
Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.) To prove the element
of causation, a plaintiff generally must show by a preponderance of the evidence that the
defendant's breach of duty (e.g., his or her negligent conduct) was a substantial factor in
bringing about the plaintiff's harm. (Leslie G., at p. 481.) If there is insufficient evidence
to support a finding that the defendant's negligence was the legal or proximate cause of
the plaintiff's injuries, a judgment for the plaintiff cannot be affirmed. (Cf. Leslie G., at
p. 481.)
In general, the question "[w]hether a defendant's conduct actually caused an injury
is a question of fact [citation] that is ordinarily for the [trier of fact] [citation]." (Osborn
v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252.) In certain cases in which
"the complexity of the causation issue is beyond common experience, expert testimony is
required to establish causation." (Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th
1363, 1373.) For example, in cases involving complicated medical causation issues, the
standard of proof generally required is a reasonable medical probability based on
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competent expert testimony that the defendant's conduct contributed to the plaintiff's
injury. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79; Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976, fn. 11.)
"The law is well settled that in a personal injury action causation must be proven
within a reasonable medical probability based upon competent expert testimony. Mere
possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a
distinction between a reasonable medical 'probability' and a medical 'possibility' needs
little discussion. There can be many possible 'causes,' indeed, an infinite number of
circumstances which can produce an injury or disease. A possible cause only becomes
'probable' when, in the absence of other reasonable causal explanations, it becomes more
likely than not that the injury was a result of its action. This is the outer limit of inference
upon which an issue may be submitted to the [trier of fact]." (Jones v. Ortho
Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) "Thus, proffering an
expert opinion that there is some theoretical possibility the negligent act could have been
a cause-in-fact of a particular injury is insufficient to establish causation. [Citations.]
Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation
illuminating why the facts have convinced the expert, and therefore should convince the
[trier of fact], that it is more probable than not the negligent act was a cause-in-fact of the
plaintiff's injury." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108, 1118.) Therefore, in those cases in which the issue of causation is
beyond common lay experience, "causation must be founded upon expert testimony and
cannot be inferred from the [trier of fact's] consideration of the totality of the
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circumstances unless those circumstances include the requisite expert testimony on
causation." (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1385.)
II
Element of Causation in This Case
Ellis contends the judgment must be reversed because McCullough did not present
any expert opinion testimony on the issue of causation, testimony required in the
circumstances of this case. She argues McCullough did not present any expert opinion
testimony that the August 17, 2007, accident caused the neck and back pain he allegedly
suffered after that date.
A
Before addressing the substance of Ellis's contention, we first address
McCullough's apparent argument that because Ellis admitted the issue of liability before
trial, she also necessarily admitted the issue of causation and therefore cannot raise that
issue on appeal. To the extent he so argues, we conclude the record on appeal supports
the trial court's implicit ruling that Ellis did not, in fact, admit the issue of causation.
On June 15, 2012, the parties filed a joint trial readiness conference report in
which the parties agreed the issues of duty and breach of duty were not disputed and the
issues of causation and damages were disputed. At the trial readiness conference on that
date, Ellis informed the trial court that she was "admitting liability . . . for Mr. Demanski
blowing the statute [of limitations]." On July 5, Ellis filed a trial brief arguing that
substantial evidence does not support a finding of causation because McCullough had
not, to date, offered any expert opinion on causation. At the August 21, 2012, hearing on
9
McCullough's request for an order approving a good faith settlement with Demanski
(which the court denied), Ellis stated: "I'm stipulating to liability." When the court
inquired whether the trial would be "only a damage phase," Ellis replied, "Correct." At
the October 26, 2012, hearing, the parties confirmed they were ready for a bench trial and
Ellis confirmed she admitted liability.
On October 29, 2012, the bench trial began and McCullough presented his
opening statement. Ellis then argued McCullough had failed to present a prima facie case
in his opening statement, stating: "This is not just a damage case, you know, I am giving
him duty. I'm giving him breach. But causation, they never mentioned anything about
causation in the opening statement." When the court inquired whether she had stipulated
to liability, Ellis replied that she had stipulated that Demanski was negligent, but had not
stipulated to the element of causation. Ellis argued: "[C]ausation of injury is part of the
underlying accident, and that has to be proved." McCullough argued that the trial was to
be only on the element of damages. Ellis explained: "[M]y understanding was that I was
stipulating to liability for the malpractice. It wasn't my understanding that I was
stipulating for liability for the car accident." In light of the apparent confusion regarding
what Ellis meant by admitting "liability," the court ruled the bench trial would proceed
that day only on the issue of damages and McCullough would receive a short
continuance, if needed, to present evidence on causation. The trial then proceeded and
McCullough presented evidence regarding his neck and back pain, including his own
testimony and the testimonies of his wife, his son, and Dr. Rhodes. After trial, the court
10
permitted the parties to submit, and the parties submitted, additional briefing on the issue
of causation. The court then entered judgment for McCullough.
Our review of the record on appeal shows the trial court did not make any finding,
either express or implied, that Ellis had admitted causation (i.e., McCullough's injuries
were caused by the August 17, 2007, accident). On the contrary, by allowing the parties
to present evidence on the issue of causation and submit posttrial briefs on the element of
causation, the court implicitly ruled Ellis had not, in fact, admitted causation and
therefore that issue was disputed and subject to resolution at trial. On this record, we
conclude the trial court did not err by so finding. Therefore, Ellis can challenge on
appeal McCullough's evidence on the issue of causation.
B
Evidence on causation. At trial, McCullough testified he suffered neck and back
pain after the August 17, 2007, accident and stated he was certain that pain was caused by
that accident. He stated he "felt great before, horrible after" that accident. He testified
his injuries from that accident interfered with his ability to do his job as a construction
manager. He testified he had previously been injured in a 2006 car accident and was
diagnosed with a bulging disc in his neck and back, but his complaints arising from that
prior accident had resolved before the August 17, 2007, accident. He further testified that
he suffered from various other medical problems, including congestive heart failure,
diabetes and gout, and has had three or four surgeries. He denied that it was possible he
was confusing his injuries suffered in the prior 2006 car accident with the injuries he
claimed he suffered in the August 17, 2007, accident.
11
Dr. Rhodes testified regarding McCullough's multiple medical problems that
included two shoulder surgeries, knee surgery, angioplasty, a pacemaker, heart disease,
diabetes, and gout. From December 2006 through June 2007, Dr. Rhodes treated
McCullough for back pain he suffered in December 2006 after he twisted while sitting
and felt a sharp pain in his lower back. When Dr. Rhodes saw McCullough on October 8,
2007, he told her about a motor vehicle accident and complained of neck and back pain.
However, he never told her that he had injured his neck or back in a car accident.
Dr. Rhodes testified it was "possible" the August 17, 2007, accident could have caused
McCullough's neck and back pain, but she could not state the accident was the probable
cause of that pain. Dr. Rhodes testified she could not ascertain the cause of
McCullough's symptoms for which she treated him from October 8, 2007, through
September 29, 2008. She testified McCullough's pain was caused by pressure on the
nerves from muscle spasm or degenerative changes such as osteophytes, which usually
occur over a long period of time.
McCullough's son testified that for about two months after the August 17, 2007,
accident, his father would stay in his room and would not come downstairs or, if he did,
he would sit on the couch. McCullough's wife testified her husband saw Dr. Rhodes for a
prior back injury after he twisted his back and could not straighten up. She also testified
she and her husband and family took a seven-day trip to Europe in March 2008. Also,
she and her husband had been to Disneyland "a lot of times" since the August 17, 2007,
accident. However, during those trips McCullough had difficulty walking and sat on a
bench a lot.
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C
Ellis asserts McCullough did not set forth a prima facie case because he did not
present any expert opinion testimony on the element of causation. She argues that
because there were other possible causes of his neck and back pain, the issue of causation
was beyond the common knowledge of the trier of fact and lay opinion on causation was
insufficient. She argues, to prove the element of causation, McCullough was required to
present expert opinion testimony that, to a degree of reasonable medical probability, his
neck and back pain was caused by the August 17, 2007, accident. We agree.
Based on our review of the record on appeal, we conclude there was evidence
presented showing there were multiple possible factors other than the August 17, 2007,
accident that may have caused McCullough's neck and back pain he allegedly suffered
after that date. McCullough suffered neck and back pain following two prior incidents in
2006. He testified he had been previously injured in a 2006 car accident and diagnosed
with a bulging disc in his neck and back. Dr. Rhodes and McCullough's wife testified he
also suffered back pain after twisting while sitting in December 2006. It is possible
McCullough's neck and back pain was caused by those incidents and not by the
August 17, 2007, accident. The evidence also shows McCullough has a complex medical
history, involving multiple surgeries, diseases, conditions, and medications, some or all
of which theoretically could have been factors in causing, or determining the cause of, the
pain he felt after August 17, 2007. Because of the multiple possible causes of
McCullough's neck and back pain after August 17, 2007, expert opinion testimony was
required to prove the element of causation. An expert opinion was required to establish,
13
to a degree of reasonable medical probability, the August 17, 2007, accident was a
substantial factor in causing that neck and back pain. (Bockrath v. Aldrich Chemical Co.,
supra, 21 Cal.4th at p. 79; Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 976,
fn. 11; Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at pp. 402-403;
Jennings v. Palomar Pomerado Health Systems, Inc., supra, 114 Cal.App.4th at p. 1118;
Cottle v. Superior Court, supra, 3 Cal.App.4th at p. 1385.)
Because the complex medical issue of causation of his neck and back pain was
beyond common lay knowledge in the circumstances of this case, McCullough was
required to present expert opinion testimony on the element of causation. By presenting
only lay testimony on causation, he did not satisfy his burden at trial to prove, to a degree
of reasonable medical probability, that the August 17, 2007, accident was a cause-in-fact
of (i.e., a substantial factor in causing) his neck and back pain. Furthermore, to the extent
McCullough argues Dr. Rhodes's testimony was sufficient to meet that burden,
Dr. Rhodes did not provide the required expert opinion on causation, but testified only
that it was "possible" the August 17, 2007, accident caused the neck and back pain for
which McCullough sought treatment. Dr. Rhodes testified she could not ascertain the
cause of McCullough's symptoms for which she treated him from October 8, 2007,
through September 29, 2008. Because McCullough did not present any expert opinion
testimony on the element of causation, he did not set forth a prima facie case in the
underlying personal injury case and thus in his legal malpractice action against Ellis.
Likewise, absent such evidence on causation, the evidence is insufficient to support the
judgment. Accordingly, the judgment must be reversed.
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III
Other Contentions
Because we dispose of this appeal based on the ground discussed above, we need
not, and do not, address the merits of Ellis's other contentions.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with
directions that it enter a new judgment in favor of Ellis. Ellis is awarded her costs on
appeal.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
15
AI Brief
AI-generated · verify before citing
Holding. The court held that in a legal malpractice action involving an underlying personal injury claim, the plaintiff must present expert medical testimony to establish causation when the medical issues are complex and beyond common lay experience. Because the plaintiff failed to provide expert testimony establishing causation to a reasonable medical probability, he failed to prove a prima facie case.
Issues
Whether a legal malpractice plaintiff must present expert testimony to prove causation in an underlying personal injury claim involving complex medical issues.
Whether the trial court erred in finding the defendant liable for legal malpractice despite the plaintiff's failure to present expert testimony on causation.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“Because we conclude McCullough did not present any expert opinion testimony on the element of causation, testimony required in the circumstances of this case, he did not set forth a prima facie case and the judgment against Ellis must be reversed.”
“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.”
“Because the complex medical issue of causation of his neck and back pain was beyond common lay knowledge in the circumstances of this case, McCullough was required to present expert opinion testimony on the element of causation.”