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Date: 04-10-2019

Case Style:

James Stokes v. Martin Frederick Muschinske

Case Number: B280116

Judge: Bigelow, P.J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Maro Burunsuzyan and David L. Scott

Defendant's Attorney: Barry R. Levy, Steven S. Fleischman, Peter J. Senuty, Stephen C. Pasarow and Maria A. Grover,


Plaintiffs James Stokes and his wife Patricia Stokes sued
Defendant Martin Muschinske after he rear-ended a car driven
by Stokes, injuring him. Muschinske stipulated to liability for
the accident, and the remaining issues, particularly the extent of
Stokes’s injuries and damages, were tried to a jury. After
hearing testimony from numerous experts and other witnesses,
the jury returned a damages award of just over $610,000, far
below Stokes’s requested damages of $23.5 million for himself
and $4 million for his wife.
Stokes1 seeks to overturn the award, arguing the jury
foreperson intentionally concealed during voir dire that he had
been involved in two prior lawsuits, and the court allowed
Muschinske to violate the collateral source rule as it related to
his past and future medical expenses.2 We find no merit to these
contentions and affirm.
Our overview of the facts is brief, and we will discuss
additional background facts as necessary to resolving the issues
on appeal.
1 Although Patricia Stokes asserted a separate loss of
consortium claim, Stokes has raised no issues particular to her
claim. We will refer to both of them in the singular for
convenience and refer to Patricia by first name as context
2 In his opening brief on appeal, Stokes also argued the court
wrongly denied a for-cause challenge to a prospective juror, but
Stokes abandoned this claim in his reply brief. We do not
address it.

On March 28, 2013, Muschinske was driving a pickup truck
towing a horse trailer loaded with equipment when he rear-ended
Stokes’s car. Prior to trial, Muschinske stipulated to liability for
the accident but disputed the causation, nature, and extent of
Stokes’s injuries and damages.
After a lengthy trial consisting largely of testimony on
causation and damages from numerous medical and other
experts, the parties proposed two vastly different damage
awards. Stokes argued his total damages were over $23.5
million, and asked the jury to award an additional $4 million for
Patricia’s loss of consortium claim. Muschinske argued for
damages for Stokes totaling less than $500,000,3 with an
additional $25,000 for Patricia.
After two hours of deliberation with one 15-minute break,
the jury awarded Stokes $560,537.51 in damages, which was
mostly—though not entirely—in line with the amounts requested
by Muschinske. The breakdown and juror count for each portion
of that award was as follows: $26,806.51 in past medical
expenses (12–0); $255,000 in future medical expenses (10–2);
$13,731 in past lost earnings (12–0); $15,000 in future lost
earnings (11–1); $100,000 in past non-economic damages (12–0);
and $150,000 in future non-economic damages (12–0). The jury
awarded Patricia $50,000 on her claim (10–2). The jury also
found Muschinske did not act with malice, precluding an award
of punitive damages. Judgment was entered on the verdict.
3 That amount consisted of $26,806.51 in past medical
expenses; $170,582 in future medical expenses; $13,731 in past
lost earnings; $100,000 in past non-economic damages; and
$150,000 in future non-economic damages.

Stokes moved for a new trial on several grounds, including
the two grounds he raises on appeal. The court denied the
motion. Stokes appealed.
I. The Trial Court’s Finding of No Misconduct by Juror
No. 11 Was Supported by the Record
Stokes argues that Juror No. 11,4 who became the jury
foreperson, committed prejudicial misconduct during voir dire by
intentionally concealing that he had been named as a defendant
in two prior lawsuits. Stokes claims he did not disclose this
information because he wanted to conceal his bias against all
plaintiffs and ensure he served on the jury. We find no merit to
his contention.
A. Procedural Background
Juror No. 11 was not called into the jury box until the
second day of voir dire. On the first day, all prospective jurors
were sworn to answer questions accurately and truthfully under
penalty of perjury. Presumably, Juror No. 11 was in the court
room at that time.
The issue of prior lawsuits came up on the first day.
One juror said he had “a real problem” because he had “been sued
twice for nothing.” After more questioning about his feelings on
lawsuits, he affirmed he “would not be fair and impartial.” A
short time later, Stokes asked all the prospective jurors whether
they or a loved one had been sued. Another juror responded
affirmatively and shared the first juror’s views on lawsuits, albeit
“not so extreme.” But that juror affirmed he was “not biased
4 We refer to this juror by number in order to preserve his

because of being sued” and could be impartial. Neither juror
served on the jury.
On the second day, Juror No. 11 was called into the box.
He was the CEO of a company involved in overnight sleep testing
for sleep disorders, and he had no jury experience. He affirmed
he could be fair and impartial. He stated that he had a “big
problem” with the time commitment for the trial, but in his view,
“[i]t’s not a problem that you’re going to accept as valid in this
As questioning of prospective jurors continued, Juror No.
11 affirmed he was willing to keep an open mind. At one point,
he said, “I don’t want to be here,” but again said he would be fair
and impartial. When Stokes’s counsel asked if he would “be okay
with following the law regardless of who the defendant is,” Juror
No. 11 responded affirmatively. Stokes’s counsel asked him if he
owned his company, and he said no.
Stokes’s counsel directed the immediate next question to
the entire panel: “Have any of the potential new jurors been
sued?” No hands were raised.
Muschinske’s counsel later questioned Juror No. 11, and he
once again affirmed he could follow the law and keep an open
mind, including following the law on liability and damages. He
was then asked, “Is there anything about experiences in business
or otherwise that would be important for us to know about as it
relates to you being a trial juror in a case like this?” He
responded, “No.” Juror No. 11 was not directly questioned again
during jury selection.
Apparently, the jury selection process dragged on,
prompting the court to note, “[T]his is the brutal truth, you’re
exhausting these jurors.” One of Stokes’s counsel said, “I know.”
The court noted Juror No. 11 “is about ready to jump through the
front of the jury box” and another juror “looked very frustrated.”
Juror No. 11 became a member of the jury and eventually became
the foreperson.
After the jury rendered its verdict, Stokes moved for a new
trial, arguing Juror No. 11 intentionally lied during voir dire by
concealing the fact that he had been named as a defendant in two
lawsuits, including one case presided over by the trial judge who
presided over the trial in this case. In support of the motion,
Stokes requested judicial notice of the dockets and proofs of
service in the two cases in which Juror No. 11 was named as a
The docket in the first case showed it was filed on June 9,
2009 and dismissed on September 7, 2010, exactly six years
before the voir dire began in this case on September 7, 2016.
According to the complaint, the case involved breach of a stock
purchase agreement by a medical group, and Juror No. 11 was
named in only one count for intentional interference with
contractual relations. A proof of service indicated that Juror No.
11 was served on May 17, 2009, several weeks before the
complaint was filed. The docket reflects that no hearings on
motions or other substantive matters were held other than a final
status conference, at which point the case was dismissed.
The second case was filed on July 23, 2010 and involved
medical negligence. Juror No. 11 was not initially named as a
defendant, and was substituted as a “Doe” defendant on
November 4, 2010. Stokes did not submit a proof of service
indicating that Juror No. 11 had been served as an individual
defendant. The proof of service he submitted was dated before
Juror No. 11 was added as a defendant, and reflected service on a
business entity named as a defendant. Juror No. 11’s name was
listed only as an agent for service of process for the entity. Juror
No. 11 was voluntarily dismissed from the case on March 1, 2011,
just shy of four months after he was added to the case. The
docket reflects the trial judge who presided over that case was
the same judge who presided over the trial in this case. The
docket does not reflect the court held any substantive hearings
while Juror No. 11 was named as a defendant.
Also in support of the new trial motion, Stokes submitted
his counsel’s declaration, which attached evidence of Juror No.
11’s advanced educational background and employment in senior
positions in the healthcare industry, as well as an article
discussing the impact a jury foreperson may have on
Muschinske opposed the motion, arguing there was no
evidence that Juror No. 11 was biased and, even if he had
committed misconduct, there was no indication of any prejudice.
Muschinske submitted declarations from three other jurors
stating that they had heard no juror, including Juror No. 11,
express any thought or opinion about prior lawsuits in which
they were involved.
At the hearing on the new trial motion, the court
announced a tentative decision to deny the motion as it related to
Juror No. 11’s alleged misconduct. The court outlined the three
analytical steps required to rule on the issue: (1) whether
“affidavits in support of the motion” are admissible; (2) whether
the evidence establishes misconduct; and (3) whether the
misconduct was prejudicial.
On the first step, the court explained: “I’m having
tremendous problem with the affidavits, including those issues
relevant to personal knowledge of things. For example, what the
thought processes were of other people. And that’s why I’m
telling you that evidence of a juror’s internal thought process or
other things here do not appear to be admissible under [Barboni
v. Tuomo (2012) 210 Cal.App.4th 340, 345 (Barboni)].”

The court continued: “The next inquiry the court must do,
second, if evidence is admissible, the trial court must then
determine whether the facts established misconduct of anybody
in here. And what I’ve looked at is—I’ve just gone through each
of these elements to make sure any—if any of them exist to
determine whether it is a basis for the motion. So I’m doing these
things just prophylactically.
“But assuming those declarations are admissible, which I’m
not sure they are, as a matter of fact I’m ordering that they’re
not, but if they are, if the evidence is admissible a court must
make a determination whether the fact established misconduct or
other things. I just don’t see it.
“Lastly. Finally, assuming misconduct occurred, and that’s
where I’m going now, was there some kind of misconduct or
something happened in this trial, whether this misconduct was
prejudicial to the findings, I just don’t see it.”
Stokes argued Juror No. 11 “blatantly lied” about the
lawsuits and Muschinske offered no evidence to rebut the
presumption of prejudice. Muschinske suggested Stokes should
have discovered any misconduct during trial, and there was no
evidence to indicate Juror No. 11 intentionally concealed the
prior lawsuits. In Muschinske’s view, the questions during voir
dire “did not elicit the type of responses that would have led to
any type of evidence that there was some type of concealment,
which ultimately will be determined because of the lack of
evidence presented by plaintiff to have been unintentional or
simply mistaken or misunderstood at best.”
In response to these arguments, the court again referred to
Stokes’s declarations, and Stokes pointed out that he did not
submit juror declarations. The court responded, “That’s what I’m
getting at. That’s the problem. Your declarations are what
support your motion, correct?” Stokes responded, “Yes. So I
misunderstood the court regarding the juror declarations that the
defense has provided.”
The court recognized that juror misconduct generally raises
a rebuttable presumption of prejudice, but found that the record
rebutted the presumption here. In particular, the court noted
that the accident “looked horrible,” but found the jury awarded a
“reasonable amount based upon the reasonable and necessary
expenses and pain and suffering allowances.” With regard to
Stokes’s request for $4 million for his wife, the court noted jurors
reacted with “disbelief” at the amount, but nonetheless awarded
her $50,000, recognizing that “there was some deterioration of
that relationship.”
The court adopted its tentative and denied the motion. The
court did not expressly rule on Stokes’s request for judicial notice.
B. Analysis
“A verdict may be vacated, in whole or in part, on a motion
for a new trial because of juror misconduct that materially
affected the substantial rights of a party. (Code Civ. Proc., § 657,
subd. (2).) A party moving for a new trial on the ground of juror
misconduct must establish both that misconduct occurred and
that the misconduct was prejudicial.” (Ovando v. County of
Los Angeles (2008) 159 Cal.App.4th 42, 57 (Ovando).) As the trial
court correctly recognized, a court generally undertakes a three-
step inquiry in ruling on a new trial motion based on juror
misconduct. First, the court determines whether affidavits
supporting the motion are admissible. Second, the court
determines whether the facts establish misconduct. Third, the
court determines whether any misconduct resulted in prejudice.
(See Barboni, supra, 210 Cal.App.4th at p. 346.)

On appeal, the parties raise myriad issues related to all
three steps. We conclude the record supported the trial court’s
finding of no misconduct, which is dispositive, so we do not
address any other issues. (See Barboni, supra, 210 Cal.App.4th
at p. 351 [declining to address prejudice because no misconduct
occurred].) In reaching this conclusion, we recognize the record is
unclear on whether the trial court admitted or excluded
Muschinske’s juror declarations. The record is also silent on
whether the court granted Stokes’s request for judicial notice.
We will presume the court did not consider Muschinske’s juror
affidavits to the extent they might have been relevant to the
misconduct question, and we will presume the court granted
Stokes’s request for judicial notice and considered his evidence.
As we explain, even viewing the record entirely in Stokes’s favor,
we cannot disturb the trial court’s ruling that no misconduct
“One form of juror misconduct is a juror’s concealment of
relevant facts or giving of false answers during a voir dire
examination.” (Ovando, supra, 159 Cal.App.4th at p. 57.)
Similarly, “[t]he concealment during voir dire of a bias, belief or
state of mind which prevents a juror from following the court’s
instructions and acting in an impartial manner constitutes
misconduct.” (Tapia v. Barker (1984) 160 Cal.App.3d 761, 765
While a juror’s intentional concealment of material
information may demonstrate implied bias sufficient to justify
disqualification, unintentional failure to disclose material
information will only justify disqualification if the juror was
sufficiently biased to constitute good cause for removal. (People
v. San Nicolas (2004) 34 Cal.4th 614, 644.) “ ‘Whether the failure
to disclose is intentional or unintentional and whether a juror is
biased in this regard are matters within the discretion of the trial
court. Except where bias is clearly apparent from the record, the
trial judge is in the best position to assess the state of mind of a
juror or potential juror on voir dire examination. [Citations.]’ ”
“On review from a trial court’s ‘determin[ation of] whether
misconduct occurred, “[w]e accept the trial court’s credibility
determinations and findings on questions of historical fact if
supported by substantial evidence.” ’ ” (Barboni, supra, 210
Cal.App.4th at p. 345.) “ ‘ “Substantial evidence” is evidence of
ponderable legal significance, evidence that is reasonable,
credible and of solid value.’ ” (Id. at p. 349.) In particular,
“[w]hether a prospective juror failed to disclose relevant
information or answered falsely and whether he or she did so
intentionally are questions of fact for the trial court to decide.”
(Ovando, supra, 159 Cal.App.4th at p. 59.)
The evidence amply supported the trial court’s implied
finding that Juror No. 11 did not intentionally conceal the prior
lawsuits. For the medical negligence lawsuit, the evidence
supported a reasonable inference that Juror No. 11 either did not
know or did not recall that he was named as an individual
defendant or that the same trial judge presided over the case.
There was no evidence he was served with the complaint. The
proof of service Stokes submitted was not for Juror No. 11
individually, but for a corporate defendant for whom Juror No. 11
was agent for service of process. Juror No. 11 was a party for
only about four months, during which time no substantive
hearings were held.
For the lawsuit involving breach of the stock purchase
agreement, the evidence showed that Juror No. 11 was served
with the complaint, but no substantive hearings were held over
the course of 15 months, and the case was dismissed six years
prior to voir dire in the instant case. There was no indication
Juror No. 11 was actively involved at any point. Again, the trial
court could have reasonably inferred that Juror No. 11 simply did
not recall the lawsuit, so his failure to disclose it was
Further undermining any suggestion of intentional
concealment, Juror No. 11 was never directly asked about any
prior lawsuits. On the first day of voir dire, the topic of prior
lawsuits arose, but Juror No. 11 was not in the jury box. During
his questioning on the second day, Juror No. 11 was specifically
asked, “Is there anything about experiences in business or
otherwise that would be important for us to know about as it
relates to you being a trial juror in a case like this?” He
responded, “No.” True, Stokes’s counsel asked the panel
including Juror No. 11, “Have any of the potential new jurors
been sued?” The question was not directed at Juror No. 11, and if
he was one such “new” juror, his failure to raise his hand in
response to this question was ambiguous at best.
Given Juror No. 11’s apparent minimal involvement in the
prior cases and his repeated affirmation during voir dire that he
could be impartial, the court could have readily concluded that
Juror No. 11 did not harbor any bias that would have justified a
challenge for cause. Stokes argues that anyone who has been
sued multiple times would have an agenda against any plaintiff
bringing a lawsuit, so Juror No. 11 “wanted to be on the jury in
order to have an opportunity to exercise an agenda against
[Stokes’s] interests.” Yet, Juror No. 11 specifically stated he did
not want to be on the jury, telling the court that he had a “big
problem” with the time commitment for the trial. As jury
selection dragged on, the court observed Juror No. 11 was “about
ready to jump through the front of the jury box.” This is not the
demeanor of a biased juror seeking to stay on a jury in order to
act on bias against plaintiffs like Stokes.
Stokes suggests that Muschinske’s failure to offer affidavits
to specifically counter his showing of Juror No. 11’s alleged
intentional concealment required the trial court to deem the
misconduct established. He cites the statement in Tapia that,
“[w]here no affidavits or declarations are introduced to counter
the evidence of jury misconduct proffered on a new trial motion,
the acts are deemed established, and the only issue is whether
they are harmful or prejudicial.” (Tapia, supra, 160 Cal.App.3d
at p. 766.) But this statement assumes Stokes himself offered
sufficient evidence showing misconduct in the first instance.
Indeed, Tapia noted in the very next sentence that “[t]he
evidence of misconduct in the present case is abundant.” (Ibid.)5
As we have explained, the trial court found no misconduct, and
the record supported that conclusion.
5 Stokes also cites Deward v. Clough (1966) 245 Cal.App.2d
439, but like Tapia, the court in that case found “the misconduct
was clearly proved.” (Deward, at p. 441.)

Stokes’s remaining arguments ignore our deferential
standard of review. “On appeal, we must accept the trial court’s
findings if supported by substantial evidence.” (Barboni, supra,
210 Cal.App.4th at p. 349.) “[W]e do not second-guess the calls
the trial court made regarding credibility.” (Ibid.) Substantial
evidence supported the trial court’s finding that no misconduct
occurred, so the court properly denied the new trial motion on
this ground.
II. There Was No Prejudicial Violation of the Collateral
Source Rule
Stokes contends the trial court allowed Muschinske to
violate the collateral source rule multiple times during trial
through references to Stokes’s past treatment at Kaiser
Permanente and Kaiser medical insurance, as well as references
to Medicare and Social Security disability benefits in relation to
future medical expenses. We disagree.
The collateral source rule generally provides that “ ‘if an
injured party receives some compensation for his injuries from a
source wholly independent of the tortfeasor, such payment should
not be deducted from the damages which the plaintiff would
otherwise collect from the tortfeasor.’ ” (Howell v. Hamilton
Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 551 (Howell).)
This rule applies to payments from private insurance as well as
public benefits. (Id. at p. 557 [private insurance payments]; see
Hernandez v. California Hospital Medical Center (2000) 78
Cal.App.4th 498, 505–506 [Medicare and Medi-Cal payments].)
There is also an evidentiary aspect to the collateral source
rule: “Because a collateral payment may not be used to reduce
recoverable damages, evidence of such a payment is inadmissible
for that purpose. Even if relevant on another issue (for example,
to support a defense claim of malingering), under Evidence Code
section 352 the probative value of a collateral payment must be
‘carefully weigh[ed] . . . against the inevitable prejudicial impact
such evidence is likely to have on the jury’s deliberations.’ ”
(Howell, supra, 52 Cal.4th at p. 552; see Corenbaum v. Lampkin
(2013) 215 Cal.App.4th 1308, 1327.)
Stokes does not contend that the trial court erroneously
admitted evidence of any specific past collateral payments by
Kaiser insurance or anticipated future collateral payments from
Medicare or Social Security. Nor does he contend that any of
Muschinske’s experts deducted any past or future collateral
payments to calculate damages, or that Muschinske argued that
the jury should make any such specific deductions. His argument
is more generalized: he claims mere reference to these entities
led the jury to infer that he either had received collateral
payments in the past or would receive collateral payments in the
future, thereby prompting the jury to reduce his damages
Stokes’s argument is based on the court’s alleged erroneous
admission of evidence, so we review the court’s rulings for abuse
of discretion. (Uspenskaya v. Meline (2015) 241 Cal.App.4th 996,
1000; see Cuevas v. Contra Costa County (2017) 11 Cal.App.5th
163, 171 [ruling on motion in limine to admit or exclude evidence
within trial court’s discretion].) If the court abused its discretion,
we must determine whether the erroneous admission of evidence
“resulted in a miscarriage of justice.” (Evid. Code, § 353, subd.
(b).) As we explain, we find no merit to his contention.6
6 Stokes raised the collateral source issue in his new trial
motion. The trial court did not discuss the issue at the hearing

Stokes’s argument is based on the following parts of the
record. Stokes had health insurance through Kaiser Permanente,
and for six months after the accident, he received treatment from
healthcare professionals at Kaiser facilities. Before trial, he filed
a motion in limine to preclude any use at trial of the names
“Kaiser” and “Kaiser Permanente” on the theory that the “vast
majority of potential jurors throughout Southern
California . . . know that the nature of the Kaiser business model
is that nobody treats at Kaiser unless they have Kaiser
insurance.” He feared his treatment at Kaiser facilities would
necessarily reveal that he had medical insurance, in derogation of
the collateral source rule. In opposition, Muschinske argued that
he should be allowed to “discuss where [Stokes] received his
treatment, especially with those instances where [he] was
examined and no injury was found.” The court tentatively denied
the motion and allowed the use of the term “Kaiser” but directed
the parties not to refer to “Kaiser insurance.”7
Throughout trial, both sides used the term “Kaiser” to refer
to Stokes’s treatment—by Muschinske’s estimation, 398
on the motion, but the court implicitly rejected Stokes’s argument
when it denied the motion.
7 Because the denial of this motion in limine was tentative,
Muschinske contends Stokes did not preserve his objection to the
Kaiser references at trial. (Evid. Code, § 353, subd. (a) [party
must object to preserve claim of evidentiary error].) Muschinske
also contends Stokes “opened the door” to the Kaiser references
by also mentioning Kaiser during trial. Because we find no merit
to Stokes’s contention, we will assume he preserved the issue for

references in 17 volumes of reporter’s transcripts. Stokes does
not discuss most of these references in his briefs on appeal, and
we are not obligated to comb the record for him in order to
evaluate his argument. (Cal. Rules of Court, rule 8.204(a)(1)(C);
see Caldera v. Department of Corrections & Rehabilitation (2018)
25 Cal.App.5th 31, 46.) Stokes does point out that Muschinske
argued in opening statement that Stokes received care for six
months through “healthcare professionals at Kaiser.” He argued
that after he returned to work he did not receive further
treatment from “any healthcare professionals, especially from
Kaiser, which is what he belonged to.” Instead, two-and-a-half
years after the accident he went to other doctors who “were not
doctors that Mr. Stokes went to from Kaiser.”8
The issue of future Medicare coverage came up during
cross-examination of Stokes’s life-care planner who testified as an
expert on the costs of his future care. She had prepared a longterm
treatment plan for him. She testified at length about the
recommended care contained in the plan. On cross-examination,
Muschinske asked the following questions about Medicare and
“Q. Mr. Stokes is 65 years old?
“A. That’s my understanding, yes.
“Q. He’s eligible for Medicare?
8 Stokes points out that Muschinske also stated in closing
argument that “the only services that he’s had out of a $5 million
plan is some medication that he got at Kaiser, and he probably
didn’t even have to pay for it.” But the court sustained Stokes’s
objection to this statement.

“[Stokes’s counsel]: Objection, your honor. Collateral
“The court: Overruled.
“[Stokes’s counsel]: Your honor, may we approach?
“The court: No.
“The witness: That would be typical at age 65.
“[¶] . . . [¶]
“Q. Mr. Stokes is a member of Kaiser?
“A. I don’t know that to be the case at this juncture.
I think he was in the past. I don’t know what the current status
The next day of trial, Stokes filed a motion to strike any
reference to future availability of Medicare benefits, to preclude
any further references to Medicare pursuant to the collateral
source rule, and to instruct the jury not to consider future
Medicare benefits in assessing costs of future care. After
discussing the law on collateral sources at length, the court did
not see a need to rule on the motion at that time, effectively
denying it.
Medicare came up again during the cross-examination of
Stokes’s wife Patricia. She testified on direct examination that
9 Stokes argues the denial of his counsel’s request to
approach the bench signaled to the jury that he was trying to
hide future government benefit payments. Stokes ignores that
the court instructed the jury not to “consider my granting or
denying a request for a conference as any indication of my
opinion of the case or of my view of the evidence.” We presume
the jury heeded this instruction. (Rufo v. Simpson (2001)
86 Cal.App.4th 573, 598 (Rufo).)

she and Stokes did not currently have insurance. Muschinske
asked her a series of questions on cross-examination regarding
whether Stokes had applied for Medicare benefits. Stokes
repeatedly objected on collateral source and Evidence Code
section 352 grounds, among others, which the court overruled.
Patricia testified that they had applied for Medicare but had not
received it yet.
Medicare was mentioned again during testimony from
Muschinske’s expert rehabilitation consultant, who testified to
his opinions on Stokes’s future care needs. He testified that one
item of cost for Stokes’s future care would be a case manager to
work with Stokes two to four hours a month for the rest of his life
expectancy. Over Stokes’s objections based on the collateral
source rule and other grounds, the witness explained that “the
case manager looks for resources to help the individual,
especially if they have some needs that cost money which they
don’t have. So we look at, for instance, Medicare to see: What
does it cover? How do we document the needs? [¶] Sometimes
Medicare turns something down because we—they don’t have the
proper documentation. Or, if there’s other services someone has,
other medical services available to them. The case manager can
tap into them. [¶] If there’s community resources; tap into those.
If there’s counseling or mental health counseling or services like
that adjustment counseling; we want to tap into those.” The
witness also noted, “Medicare is an example of service that could
be provided to an individual. So if someone has Social Security
disability, SSDI for 24 months, they’d be eligible for Medicare.”
Turning to Stokes’s claim of error, most of these references
to Kaiser and Medicare, as well as the single reference to Social
Security, merely provided context and background information on
Stokes’s past treatment at Kaiser and on some aspects of
Muschinske’s experts’ calculation of past and future reasonable
medical expenses. They were helpful and even necessary to the
jury’s understanding of the issues. Stokes has not shown the
court abused its discretion in admitting these references to assist
the jury’s understanding of the facts.
A few references arguably did approach the line between
permissible background information and reference to collateral
sources. For example, the questions posed to Stokes’s life-care
planner implicated payments by Medicare and Kaiser insurance.
The cross-examination of Stokes’s wife also referenced Medicare
coverage. Yet, even if we assume Stokes has shown the trial
court should have excluded some or all of these references, his
claim of prejudice is based entirely on speculation.
For the references to Kaiser, we can accept that lay jurors
in Southern California might have inferred Stokes had Kaiser
insurance that may have covered his past treatment. But Stokes
does not suggest there was evidence of any specific insurance
payments, and there is nothing to suggest the jury reduced his
damages award by some unidentified amount simply because he
had insurance coverage. The jury unanimously awarded him
$26,806.51 in past medical expenses, exactly the amount
Muschinske requested based on expert testimony regarding the
reasonable cost for Stokes’s past medical expenses.10
10 Muschinske’s expert used the Medicare “allowable amount”
and 130 percent of the Medicare allowable amount as methods to
calculate reasonable value of past services. Stokes does not
suggest the expert deducted any actual Medicare or other
collateral payments in that calculation.

Stokes has identified nothing to suggest that Muschinske’s
expert considered any insurance or other collateral payments in
conducting this analysis. In fact, Stokes’s wife testified on direct
examination that Stokes has to “reimburse every dollar that
Kaiser has paid for his care.” The court also instructed the jury:
“You must not consider whether any of the parties in this case
has insurance. The presence or absence of insurance is totally
irrelevant. You must decide this case based only on the law and
the evidence.” We presume the jury followed this instruction.
(Rufo, supra, 86 Cal.App.4th at p. 598.)
Likewise, for the Medicare references, Stokes does not
point to any evidence of deductions for specific future Medicare
payments, and nothing suggests the jury subtracted unidentified
future Medicare coverage in assessing future medical expenses.
The jury awarded $255,000 for future medical expenses, which
was almost $85,000 more than Muschinske’s proposed amount of
$170,582, suggesting the jury carefully considered the competing
expert testimony on the issue of reasonable future costs and
arrived at a reasonable award.
Stokes claims it is “reasonably probable” that the jury
discounted his requested future medical expenses of $5.77 million
in light of future Medicare coverage, but he points to nothing in
the record to support that conclusion. He also contends the jury’s
10–2 verdict on this award shows prejudice because “only a mere
two jurors who voted in the majority needed to have been
influenced or confused” by the Medicare references. This is
entirely speculative. It is equally possible that two jurors
dissented because they believed he should have received no more
than $170,582, the amount proposed by Muschinske.
Stokes also attempts to link together different aspects of
Muschinske’s experts’ testimony to show the jury must have
reduced his requested future medical expenses due to future
Medicare payments. His argument goes: (1) Muschinske’s
expert rehabilitation consultant testified that a case manager
would help Stokes look for resources like Medicare in the future.
(2) Muschinske’s expert on the reasonable cost of past care used
a “benchmark” of Medicare allowable amounts to calculate
reasonable cost because “roughly, 98 percent of physicians and
other medical providers accept Medicare as payment in full.”
(3) Stokes requested $5.77 million in future medical expenses,
but the jury awarded $255,000, which was roughly $85,000 more
than Muschinske’s proposed amount. (4) Because the $85,000
difference is about 2 percent of his requested amount (actually
about 1.5 percent), the jury must have reduced his requested
amount by 98 percent because that is what the jury believed
Medicare would cover.
We are not persuaded. No one argued this theory to the
jury and no rational jury would have accepted it. The 98 percent
figure forming the lynchpin of this theory did not relate to the
proportion of costs covered by Medicare; it related to the
proportion of physicians and medical providers who accepted
Medicare payments. To argue that the jury would have used it to
reduce his future medical costs by 98 percent is a non sequitur.
Finally, with regard to Social Security, the single vague
reference by Muschinske’s expert rehabilitation consultant could
not have affected the jury’s verdict. This one reference would not
have allowed the jury to infer he would get Social Security
payments in the future, and even if it could, there was no basis
for the jury to somehow quantify those payments, then reduce his
future medical expenses by that amount.

Outcome: The judgment is affirmed. Respondent Muschinske is awarded costs on appeal.

Plaintiff's Experts:

Defendant's Experts:


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