DETJEN, J.
Plaintiff and appellant Irvin Verduzco appeals from a judgment of the Superior Court of Stanislaus County entered on April 20, 2015, in favor of defendant and respondent Ford Motor Company (Ford).
Verduzco sustained a skull fracture and brain trauma, inter alia, in an automobile collision. He sued Ford, alleging a defect in the design of the 1993 Ford Taurus—the car in which he was riding at the time of the accident—caused his head injuries.
On appeal,
Regarding Verduzco's first contention, the substantial evidence test is not the proper standard of review. Because Verduzco bore—and failed to carry—the burden of proving causation, the question before us is whether the record compels a reversal of the special verdict as a matter of law. Such a finding is warranted only if Verduzco's evidence was uncontradicted, unimpeached, and of such character and weight as to leave no room for a judicial determination to the contrary. Under this standard, we conclude the record does not compel a reversal. We also conclude none of the trial court's rulings challenged by Verduzco amounted to prejudicial error. We affirm the judgment.
On the evening of May 19, 2000, a Ford Taurus occupied by Verduzco and four other individuals—all of whom were wearing seatbelts—headed westbound on State Route 108. Verduzco, then 13 years old, sat in the backseat directly behind Guadalupe A., the front seat passenger. At a three-way junction, the Taurus came to a complete stop, allowing opposing traffic to pass in order to make a left turn onto Skittone Road. Before the Taurus could proceed, it was rear-ended by a 1999 Ford Explorer driven by Gordon F. The Explorer only struck the right side of the Taurus's rear structure; there was no direct contact with the left side. (See fn. 3, post.) At the time of impact, the Taurus's trunk contained a spare tire and a wooden speaker box measuring two feet seven inches in width.
Verduzco sustained the following injuries: "Large left parietal scalp hematoma extending from the frontal to the posterior parietal/occipital region"; "Bleeding from ears, nose"; "Left temporal-parietal skull fracture without significant depression"; "Bilateral basilar skull fractures"; "Contusions with small punctuate areas of hemorrhage in the left temporal lobe"; "Diffuse brain stem edema; diffuse cerebral edema"; "Pneumocephalus"; "Bilateral pulmonary contusions most prominent posteriorly"; "Anterior mediastinal hematoma"; "three small wounds on his right knee"; and "minor abrasions on the left knee and lower extremity." Subsequent neuropsychological testing confirmed severe cognitive impairment.
Guadalupe sustained a lower left occipital scalp contusion and posterior neck pain. Sergio V., the driver of the Taurus, was unscathed and the remaining passengers suffered minor injuries.
Verduzco sued Ford. He alleged the defective design of the Taurus proximately caused his head injuries.
Trial commenced on December 3, 2013. On December 19, 2013, the 11th day of trial, the trial court issued a tentative ruling concerning the admissibility of six crash tests performed by Verduzco's expert Robert Hooker. Of these tests, three were admitted, one was conditionally admitted, and two were excluded. However, the court found Hooker did not possess "the requisite expertise, training, or knowledge to express engineering opinions" and was not qualified to "state opinions based on any of his crash tests." It stressed the tests needed to "come in through an expert" and could not "come in on [their] own."
Ford moved for a mistrial, citing the disadvantage of "having to face new expert opinion testimony" "two weeks into trial." Following Verduzco's stipulation, the court declared a mistrial.
On May 27, 2014, pursuant to Code of Civil Procedure section 639, the court appointed a discovery referee to "`deal with all remaining discovery issues.'" b. Deposition of Dr. Ram Krishnaswami.
On December 5, 2014, Verduzco's counsel deposed Krishnaswami, one of Ford's experts. The following exchange ensued:
On January 22, 2015, Verduzco moved to "compel crash testing upon which defense experts are relying." (Capitalization omitted.) Specifically, he claimed Krishnaswami "revealed that there is a formal process where testing is done to find" "the appropriate balance between energy absorption and penetration resistance" and "intend[ed] to rely upon that testing and testify to the jury it occurred." After a February 13, 2015, phone conference, the referee recommended denial of Verduzco's motion. In a proposed ruling served by mail to the court and the parties that day, he reasoned:
Verduzco hired KARCO Engineering, LLC (KARCO) to run several crash tests at its facility in Adelanto. In a trial brief, Verduzco described these tests:
The second trial commenced on February 24, 2015.
Verduzco moved "to exclude reliance, directly or indirectly, on crash tests not produced." (Capitalization & boldface omitted.) He reiterated Krishnaswami "revealed that there is a formal process where testing is done to find" "the appropriate balance between energy absorption and penetration resistance" and "intend[ed] to rely upon that testing and testify to the jury it occurred." Verduzco indicated the motion was "also intended as an objection to [the referee's] Proposed Ruling." The parties argued the matter at the motion hearing. Ford's counsel urged the court to adopt the referee's recommendation. The court denied Verduzco's motion.
In separate motions, Ford asked the court to exclude from evidence KARCO Tests 4 and 8. Regarding KARCO Test 4, Ford argued:
Regarding KARCO Test 8, Ford argued:
Ford again highlighted the Volvo 740's "completely different rear structure." Following the parties' oral arguments on the matter, the court granted Ford's motions. It reasoned:
Gordon moved out of the state prior to trial and was unable to testify in person. The parties agreed to play a video recording of his July 28, 2010, deposition and met and conferred about its scope. Verduzco "objected to the portion of [Gordon]'s testimony where he referred to his parents' insurance and fault assignment." Ford agreed it would present an edited video "omit[ting] these references."
The jury watched Gordon's video-recorded deposition. However, it heard the following exchange:
After a sidebar conference, the parties agreed to a stipulation:
Guadalupe recounted what he observed and how he reacted immediately before impact:
Guadalupe never turned his head "all the way around." He did not see "anybody in the back" or the headlights of Gordon's Explorer.
Saczalski, a consulting engineer, reviewed video recordings of the five KARCO crash tests admitted into evidence. Regarding KARCO Test 3, in which an Explorer collided with an unmodified Taurus at 32 miles per hour and the Taurus's trunk contained a speaker box but not a spare tire, he observed:
Regarding KARCO Test 6, in which an Explorer collided with an unmodified Taurus at 32 miles per hour and the Taurus's trunk contained both a speaker box and spare tire, Saczalski noted:
By contrast, in KARCO Tests 2 and 7, in which an Explorer collided with an unmodified Taurus at 52.8 and 50.4 miles per hour, respectively, Saczalski saw "[m]ore crush and more intrusion from the rear into the rear-seated passengers" and "[m]uch more violent" kinematics. He concluded Gordon's Explorer never reached 50.4 miles per hour at the time of impact.
Finally, with regard to KARCO Test 5, in which an Explorer collided with a modified Taurus at 32 miles per hour, Saczalski observed:
Saczalski testified he implemented the modifications in the Taurus used in KARCO Test 5. These modifications included a "cargo penetration barrier for [the] rear seatback"; "energy absorbing foam" in the "space between [the] improved cargo barrier and original rear seatback"; "weld[ing] of [the] OEM
Saczalski's modifications were based on recommendations in a report titled "OCCUPANT PROTECTION IN REAR IMPACT," which was presented at the Fifth International Technical Conference on Experimental Safety Vehicles in 1974. The author, D. Burland, was an engineer employed by Ford Motor Company Limited.
Benda, a biomechanist, inspected the Taurus from the May 19, 2000, collision. He also examined the police report; Verduzco's and Guadalupe's medical records; deposition testimonies; and photographs of the vehicles and the accident scene. Certain photographs demonstrated the "crush can" in the Taurus's front passenger's seat's head restraint was "severely damaged."
Benda concluded Verduzco's skull and brain injuries resulted from "[b]lunt force impact to the left side of the head," indicating Verduzco "struck a flat surface, as opposed to something with an edge." Benda also concluded Verduzco's chest and thorax injuries resulted from "[b]road blunt force impact across the back bilaterally," indicating Verduzco was "smacked uniform[ly] in the back" with "a broad, flat surface." As to precisely how Verduzco sustained his injuries, Benda opined:
As a visual aid, Benda presented the side view of a computer-generated three-dimensional (3-D) illustration showing the temporal-parietal portion of Verduzco's model's head striking the occipital portion of Guadalupe's model's head. Benda confirmed the 3-D illustration could be "rotated to get views from 360 degrees."
Piziali, a consulting engineer specializing in biomechanics, challenged Benda's explanation. First, "nobody . . . found any evidence of abrasions on [Guadalupe's] seatback consistent with ramping. . . ." Second, Verduzco's head could not have struck the front passenger's seat's head restraint and Guadalupe's head at the same time because the head restraint would have prevented any direct impact with the part of Guadalupe's head that was bruised.
Moreover, Piziali pointed out Benda's 3-D illustration could be surveyed "from different directions" and analyzed "a lot more thoroughly." Using the 3-D computer graphics software "Poser" and "3D Studio Max," Piziali examined "the actual complete image" and made several observations. First, Guadalupe's model was "elevated very far above the seat," i.e., 9.6 inches. Including the two or three inches the seat would have been depressed, Guadalupe's model "moved upward about an entire foot." Second, while Guadalupe's model wore a shoulder belt, it did not wear a lap belt, the use of which would have been "clearly inconsistent" with "that much movement." Third, Verduzco's model exhibited an "extreme distortion in the neck," its head "getting all the way to 90 degrees at impact with the headrest." Because Verduzco did not sustain a neck injury in the collision, such distortion was "unrealistic." Fourth, the heads of Verduzco's and Guadalupe's models were "overlapping," i.e., "there's essentially one inch of penetration," indicative of "extreme crushing to the skull of Mr. Verduzco" rather than a linear, nondisplaced fracture.
Piziali inspected the Taurus. He reviewed the police report; photographs of the accident scene; medical records; witness statements; and deposition testimonies, including those of Guadalupe (ante, fn. 5), Sergio, and another Taurus passenger.
Piziali emphasized Verduzco would not have sustained the "injury to the left side of his head" "had the speaker box not been there in . . . the trunk."
Piziali watched the video recordings of the KARCO crash tests. He did not believe the tests accurately represented the conditions at the time of the May 19, 2000, collision:
Viano, an injury biomechanics researcher, detrimmed and examined the Taurus's front passenger's seat. He discussed his findings:
In addition, Viano presented various graphs charting the performances of various single and dual recliner seats in body block testing
Next, Viano discussed the head injury criteria (HIC), "a method of looking at the risk that an occupant might experience a brain injury or a skull fracture" used by the federal government since 1972. He presented a graph titled "HIC Injury Assessment" and explained:
In view of the HIC Injury Assessment, Viano compared the crush can in the Taurus's front passenger's seat's head restraint with other Taurus crush cans subjected to impact testing. He noted the damage to the Taurus's crush can was greater than the damage to the test crush cans struck by a 10-pound model head at or below 17.1 miles per hour and less than the damage to the test crush cans struck at or above 21.6 miles per hour, leading him to deduce the Taurus's crush can was struck by Verduzco's head at between 17 and 22 miles per hour. According to Viano, a head striking a crush can at 22 miles per hour "represent[ed] 570 HIC or . . . 57 percent of 1,000 [HIC]." Viano concluded Verduzco's skull fracture and brain injury could not have resulted from hitting the head restraint:
Viano attended KARCO Tests 5, 6, and 7 in person and reviewed the results of each test. He commented:
Vogler, a mechanical engineer specializing in design and materials performance, inspected Saczalski's modified Taurus used in KARCO Test 5 and the unmodified Taurus models used in KARCO Tests 3 and 6. Utilizing a FARO laser scanner, she captured 3-D models of these vehicles for comparative analyses of rear crush and back panel, rear seat structure, and rear seat cushion displacement.
Based on the scan data, Vogler concluded Saczalski's modifications "would have had [no] meaningful effect" "[a]s far as resisting intrusion from [an] Explorer" traveling at 32 miles per hour. Regarding rear crush, she testified:
Regarding back panel and rear seat structure displacement, Vogler stated:
Lastly, regarding rear seat cushion displacement, Vogler observed:
Ford requested an instruction on causation akin to the one requested in Soule v. General Motors Corp. (1994) 8 Cal.4th 548 (Soule):
The court asked, "[W]hat evidence has Ford produced that Mr. Verduzco[] . . . would have received the same injuries irregardless of a defect in design?" Ford's counsel stated "the speed of the impact is far in excess of what [Verduzco] tested to and what the basis for [his] causation theory is" and the "force and violence and severity of the crash" "caused the injury and not a head-to-head contact at 32 miles an hour." In response, Verduzco's counsel cited testimony that an alternative design would have prevented Verduzco's head injuries.
Verduzco requested two special instructions on causation. The first (hereafter, Special Instruction No. 1) mirrored language in Soule:
The second (hereafter, Special Instruction No. 2) closely mirrored language in McGee v. Cessna Aircraft Co. (1978) 82 Cal.App.3d 1005:
The court rejected Verduzco's Special Instruction No. 1 save for one sentence:
The court rejected Verduzco's Special Instruction No. 2 in its entirety.
On April 10, 2015, the 29th day of trial, the court gave its final instructions to the jury. It issued, inter alia, Jury Instruction No. 25, a modified version of CACI No. 1204 (Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual Elements—Shifting Burden of Proof); Jury Instruction No. 26, which tracked the language in CACI No. 430 (Causation: Substantial Factor); Jury Instruction No. 27, a modified version of CACI No. 431 (Causation: Multiple Causes) incorporating the parties' stipulation on Gordon F.'s negligence (see ante, at p. 10); and Jury Instruction No. 30, based on the first sentence of Verduzco's Special Instruction No. 1:
In his closing argument, Verduzco's counsel remarked:
The jury rendered its special verdict on April 10, 2015:
Verduzco moved for a new trial. He argued: (1) the evidence did not sufficiently support the verdict; (2) Ford's counsel committed misconduct by playing the challenged portion of Gordon's video-recorded deposition; (3) the trial court erroneously refused to give his two requested special instructions on causation; and (4) the trial court erroneously excluded KARCO Tests 4 and 8. The court issued a tentative ruling denying the motion:
"A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way." (Soule, supra, 8 Cal.4th at p. 560.) "Although a collision may not be the `normal' or intended use of a motor vehicle, vehicle manufacturers must take accidents into consideration as reasonably foreseeable occurrences involving their products." (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126.) "Because traffic accidents are foreseeable, vehicle manufacturers must consider collision safety when they design and build their products. Thus, whatever the cause of an accident, a vehicle's producer is liable for specific collision injuries that would not have occurred but for a manufacturing or design defect in the vehicle." (Soule, supra, at p. 560.)
"A product is defective in design for purposes of tort liability if the benefits of the design do not outweigh the risk of danger inherent in the design. [Citation.] This is known as the risk-benefit test." (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1130 (Bell), citing Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418, 432 (Barker).) "To prove a defect under this test, a plaintiff need only demonstrate that the design proximately caused the injuries. Once proximate cause is demonstrated, the burden shifts to the defendant to establish that the benefits of the challenged design, when balanced against such factors as the feasibility and cost of alternative designs, outweigh its inherent risk of harm." (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1121 (McCabe); see Barker, supra, at p. 431 ["[I]n evaluating the adequacy of a product's design . . ., a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design."].)
"In the context of products liability actions, the plaintiff must prove that the defective product[] supplied by the defendant w[as] a substantial factor in bringing about [the] injury." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968 (Rutherford); see Soule, supra, 8 Cal.4th at p. 572 ["A tort is a legal cause of injury only when it is a substantial factor in producing the injury."]; Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 926 ["[I]t is a necessary prerequisite to recovery for defective design that the defect be a substantial contributing factor to plaintiff's injuries."].) "The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." (Rutherford, supra, at p. 978; see id. at p. 969 ["[A] force which plays only an `infinitesimal' or `theoretical' part in bringing about injury, damage, or loss is not a substantial factor."].)
"We generally apply the familiar substantial evidence test when the sufficiency of the evidence is at issue on appeal. Under this test, `"we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment. . . . `In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.' [Citation.] All conflicts, therefore, must be resolved in favor of the respondent."' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1527, italics omitted; accord, Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)
However, the substantial evidence test "is typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence." (In re I.W., supra, 180 Cal.App.4th at p. 1528.) "`In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. . . . [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer's); accord, Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 390.) "The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment. [Citation.] `"All conflicts, therefore, must be resolved in favor of the respondent." [Citation.]' [Citation.]" (Dreyer's, supra, at p. 838; see Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486 ["Where . . . the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor."].)
"Generally, the burden falls on the plaintiff to establish causation." (Rutherford, supra, 16 Cal.4th at p. 968; see Endicott v. Nissan Motor Corp., supra, 73 Cal.App.3d at p. 928 ["[N]o general rule exists in the field of product[s] liability requiring the manufacturer of a defective product to prove a negative—his noncausation of plaintiff's injuries."].) Here, Verduzco bore—and failed to carry—the burden of proving the Taurus's design was a substantial factor in causing his head injuries. Hence, the question before us is whether the record compels a reversal of the jury's special verdict as a matter of law.
According to Verduzco's experts, when Gordon's Explorer rear ended the Taurus, the latter's front passenger's seat moved backward toward Verduzco; Guadalupe, the front passenger, ramped up the seatback; Verduzco was propelled forward; and Verduzco's skull simultaneously struck the front passenger's seat's head restraint and the occipital portion of Guadalupe's skull, resulting in Verduzco's skull fracture and brain trauma. Based on Benda's 3-D illustration, Guadalupe did not wear a lap belt and ramped up approximately 12 inches; Verduzco's neck was rotated 90 degrees when his head hit the head restraint; and Verduzco's skull was crushed. These assertions, however, were controverted. Viano detrimmed the front passenger's seat and found minimal rearward movement, likely because Verduzco's knees impeded such movement. Each occupant of the Taurus—including Guadalupe—was wearing a seatbelt at the time of impact. There were no abrasions on Guadalupe's seatback or any other physical evidence of ramping. Piziali testified it would have been impossible for Verduzco's skull to have simultaneously hit the head restraint and the occipital portion of Guadalupe's skull—where Guadalupe received a contusion—because the former would have shielded the latter. Viano analyzed the crush can inside the head restraint and concluded the speed at which Verduzco's head struck it, i.e., 17 to 22 miles per hour, would not have been enough to cause Verduzco's skull fracture or brain trauma. Finally, Verduzco's skull fracture was linear and "without significant depression" and he did not suffer a neck injury.
Because the evidence supporting Verduzco's theory of causation was neither "`"uncontradicted and unimpeached"'" (Dreyer's, supra, 218 Cal.App.4th at p. 838) nor "`"of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding"'" (ibid.), reversal of the jury's special verdict is unwarranted.
In his brief, Verduzco argues the court, in rejecting Ford's requested instruction on causation (see ante, at p. 23), "found that there was no evidence to support that the [Taurus's] design was not a substantial factor in causing the injury." We dispute this portrayal of the ruling. Ford's instruction proposed that Verduzco would have sustained the same head injuries in any event, i.e., irrespective of the Taurus's design; in other words, the Taurus's design was irrelevant. (See Soule, supra, 8 Cal.4th at p. 572 ["If the external force of a vehicle accident was so severe that it would have caused identical injuries notwithstanding an abstract `defect' in the vehicle's collision safety, the defect cannot be considered a substantial factor in bringing them about."].) At most, the court's ruling rebuffed this notion. The court did not withdraw the question of whether the Taurus's design was a substantial factor in causing harm to Verduzco from the jury's consideration. In fact, it still issued Jury Instruction Nos. 25 through 27. (See ante, at pp. 25-26.)
Verduzco also maintains "the evidence was undisputed at trial that a different design could have prevented the injury." Even if we accept this claim, which completely discounts Vogler's testimony (see ante, at pp. 22-23), under the risk-benefit test, the plaintiff must first prove the design of the product in question is a proximate cause of injury before the burden shifts to the defendant to prove the benefits of the challenged design outweigh its inherent risk of harm. (McCabe, supra, 100 Cal.App.4th at p. 1121.) Because the jury found the Taurus's design was not a substantial factor, the inquiry ends, obviating the need to review the adequacy of the Taurus's design by, inter alia, considering alternative designs.
In its brief, by way of footnote, Ford states Verduzco "failed to object to the [discovery referee's] recommendation within ten days of its submission" and "therefore waived any right to appeal the issue." (See Code Civ. Proc. § 643, subd. (c); Martino v. Denevi (1986) 182 Cal.App.3d 553, 557.) Verduzco counters that his motion in limine "to exclude reliance, directly or indirectly, on crash tests not produced" constituted such an objection. (See ante, at p. 8.)
The referee's proposed ruling was served by mail to the court and the parties on February 13, 2015. Verduzco's in limine motion was served by e-mail to Ford on February 20, 2015. The record does not establish this motion was also served to the referee. (See Code Civ. Proc., § 643, subd. (c) ["The objection shall be served on the referee and all other parties."].)
Assuming, arguendo, Verduzco did not properly preserve his claim of discovery error, we exercise our discretion to review it on the merits. (See People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6 ["An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so."], citing Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, fn. 17.)
"We examine the trial court's decision to accept the referee's recommendation for an abuse of discretion." (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 589.) "A ruling that constitutes an abuse of discretion has been described as one that is `so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773; see Denham v. Superior Court (1970) 2 Cal.3d 557, 566 ["`Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.'"].) "`The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court, supra, at p. 566.)
In his motion to compel, Verduzo alleged Krishnaswami, during deposition, "revealed that there is a formal process where testing is done to find" "the appropriate balance between energy absorption and penetration resistance" and "intend[ed] to rely upon that testing and testify to the jury it occurred." However, according to the deposition transcript, Krishnaswami testified his knowledge of "[the] process at Ford where [it] learned . . . the right relationship between stiffness and crash pulse . . . for a vehicle the size and shape of the Taurus" was "based on [his] training and the knowledge base [he] developed over 20 years at Ford." When Verduzco's counsel asked him whether he intended to testify at trial about specific testing, Krishnaswami replied, "Not having a crash test to point to sitting here today, I don't intend to." We conclude the denial of Verduzco's motion on this basis was not so irrational or arbitrary that no reasonable person could agree with it.
Verduzco contends the court should have given Special Instructions Nos. 1 and 2 because they directly specified "that although the Taurus did not cause the accident, the design of the Taurus allowed a more severe injury, and Ford may be held liable for this increased injury." He adds the special instructions also "should have been given to cure the prejudice caused by the attorney misconduct in playing [Gordon's] testimony that his insurer had determined him solely to blame for the accident." (Boldface omitted.)
Assuming, arguendo, the court's refusal to give Verduzco's Special Instructions Nos. 1 and 2 was erroneous, "there is no rule of automatic reversal or `inherent' prejudice applicable to any category of civil instructional error, whether of commission or omission." (Soule, supra, 8 Cal.4th at p. 580.) "A judgment may not be reversed for instructional error in a civil case `unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'" (Ibid., quoting Cal. Const., art. VI, § 13.) "`[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; accord, Soule, supra, at pp. 574, 580.) "[W]hen deciding whether an error of instructional omission was prejudicial, the court must . . . evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule, supra, at pp. 580-581, fn. omitted.)
Here, the jury heard Gordon comment that his insurance company "assigned [him] full blame from the best of [his] knowledge." "It is common knowledge today that most drivers in California carry automobile insurance protecting them from liability." (Bell, supra, 181 Cal.App.4th at p. 1123, fn. omitted.) "Absent aggravating circumstances, the brief mention of . . . insurance in an action against an automobile manufacturer . . . for . . . products liability is very unlikely to cause the jury to conclude . . . that the defendant should be relieved of liability for any reason." (Ibid.) Nonetheless, the parties later stipulated Gordon "was negligent and his negligence was a substantial factor in causing the accident and . . . Verduzco's harm." In its jury instructions, largely derived from CACI Nos. 430, 431 and 1204 (see Cal. Rules of Court, rule 2.1050(e) ["Use of the Judicial Council instructions is strongly encouraged."]), the court tasked the jurors with determining whether the Taurus's design "was a substantial factor in causing harm to Mr. Verduzco"; explained a "substantial factor in causing harm" "does not have to be the only cause of the harm"; read the parties' abovementioned stipulation; clarified "[a] person's negligence may combine with another factor to cause harm"; and advised that if the jury found the Taurus's design "was also a substantial factor in causing . . . Verduzco's harm, then Ford . . . is also responsible for the harm" and "cannot avoid responsibility just because some other person . . . was also a substantial factor in causing . . . Verduzco's harm." "In general terms, the [court's] instructions . . . encompassed [Verduzco's] theory, and . . . did not foreclose a . . . verdict on that theory." (Soule, supra, 8 Cal.4th at p. 581; see Bell, supra, at p. 1123 ["[W]e presume that the jury followed the instructions absent some indication to the contrary."].) Furthermore, in his summation, Verduzco's counsel reiterated that Ford could still be held liable for Verduzco's head injuries even though Gordon caused the accident. (See ante, at p. 27.) Nothing in the record suggests the jury was led to believe otherwise. Therefore, we conclude it is not reasonably probable a result more favorable to Verduzco would have been reached had the court issued Special Instructions Nos. 1 and 2 in their entirety.
Next, Verduzco alleges the court "abused its discretion in precluding evidence of the 1990 Volvo 740 as an alternative design," i.e., KARCO Tests 4 and 8. (Boldface omitted.) He contends "testing of alternative designs that in fact greatly reduced intrusion without causing more severe forces on the occupants was highly relevant." Ford argues the court's ruling was correct because KARCO Tests 4 and 8 were not "conducted `under conditions substantially similar' to those of the incident" and KARCO Test 8 was conducted "long after" the parties' agreed-upon deadline and "just two weeks before trial" and "not disclosed to Ford until a week after that."
Assuming, arguendo, the court erred and should have admitted KARCO Tests 4 and 8 into evidence, by constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see ante, at pp. 36-37.) "`The effect of this provision is to eliminate any presumption of injury from error, and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the [appealing party]. Thus, reversible error is a relative concept, and whether a slight or gross error is ground for reversal depends on the circumstances of each case.' [Citation.]" (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800.)
As noted, under the risk-benefit test, the plaintiff must first prove the design of the product in question is a proximate cause of injury before the burden shifts to the defendant to prove the benefits of the challenged design outweigh its inherent risk of harm. Because the jury found the Taurus's design was not a substantial factor, the inquiry ends, obviating the need to review the adequacy of the Taurus's design by, inter alia, considering alternative designs such as the Volvo 740. (See ante, at p. 34.)
Finally, Verduzco asserts "the prejudice is simply overwhelming" when the trial court's challenged rulings are considered "collectively."
The judgment is affirmed. Costs on appeal are awarded to respondent Ford Motor Company.
HILL, P.J. and FRANSON, J., concurs.
In his opening brief, Verduzco mentions in passing the two judgments for costs but does not raise any issues in connection with those matters.
During his deposition, Adrian D., who sat in the backseat directly behind Sergio, testified:
In the instant case, given each party's reliance on numerous experts, "both parties assumed that quite complicated design considerations were at issue, and that expert testimony was necessary to illuminate these matters" (Soule, supra, 8 Cal.4th at p. 570), making "injection of ordinary consumer expectations into the design defect equation . . . improper" (ibid.).
