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Lachaga v. United Parcel Service10/28/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendants United Parcel Service, Inc. and Henry Joaquin Perez (collectively, UPS) appeal from an order granting a new trial on the ground of surprise. We conclude that the trial court did not abuse its discretion and affirm.
Background
On May 5, 1999, plaintiff Nolberto Lachaga was injured while riding his bicycle, when he collided with the back of a UPS delivery truck being driven by Perez that had stopped in the bicycle lane. He brought an action to recover for his personal injuries, which he contended included brain damage. The complaint included a cause of action for loss of consortium by Nolberto's wife, Teresita Lachaga.
Following numerous continuances, trial commenced on January 15, 2002. After plaintiffs rested their case, UPS announced that its first witness would be a private investigator, Michael Sheehan. On November 16 and 17, 2001, after the close of discovery, Mr. Sheehan had videotaped Nolberto engaged in physical activities that appeared to be inconsistent with what Nolberto and his wife had testified he was not able to do or could do only with great difficulty. Sheehan had not been disclosed in UPS's witness lists, and the videotape had not been disclosed in its exhibit lists. Over Lachaga's objection, the trial court permitted the jury to see the videotape, but the court instructed the jury that UPS had improperly failed to disclose the witness, and that the jury could consider this omission in deciding the weight and significance of the evidence. Lachaga presented no rebuttal evidence.
After viewing the videotape a second time during deliberations, the jury returned a verdict finding Nolberto and UPS equally negligent in causing the accident, and awarding plaintiffs damages that, after being reduced by 50 percent, totaled $153,212.50. Plaintiffs moved for a new trial, arguing that they had been unfairly surprised by the admission of the videotape, for which reason the amount of damages awarded by the jury had been less than it otherwise would have been. The motion was supported by declarations from two of plaintiffs' medical experts stating that they had viewed the videotape and found it consistent with their findings, and that they could have explained those opinions during trial if they had been aware of the videotape. However, neither expert was able to return to testify on rebuttal. One expert, a neurologist from Alabama, stated that he had been away from his practice for three days in order to testify and could not have returned to California for approximately 60 days. The other doctor was out of town testifying in another trial when the videotape was first disclosed. A third expert, a neurologist who had treated Nolberto, had gone to India and thus was also unable to testify on rebuttal.
The court found that sufficient evidence supported the verdict, and rejected the contention that inadequate damages had been awarded. Nonetheless, the court granted the motion for a new trial based on grounds of accident or surprise. In its order granting the motion, the court explained that although UPS had not violated any discovery orders, UPS's attorney had failed to follow a local rule and explicit directions from the court to disclose the evidence it would present, and that this failure resulted in unfairness to the plaintiffs. "During the final preparation for the commencement of t
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