Metropolitan News-Enterprise


Monday, August 15, 2016


Page 1


Affair Admissible to Dispute Consortium Claim—C.A.




A couple who made a loss-of-consortium claim as part of their suit for damages allegedly sustained as a result of an auto collision opened the door to evidence of the husband’s extramarital affair more than a decade earlier, the Fourth District Court of Appeal ruled Friday.

Div. One affirmed a judgment in favor of Dwayne Schwartz, who admitted responsibility for the incident in which his vehicle sideswiped Susan Christ’s as he drove around a bus, but denied that Christ was injured as a result.

Christ did not seek medical attention at the time of the 2011 collision, but subsequently sought treatment for neck and back pain. Her San Diego Superior Court complaint included a claim by her husband, Jon Christ, for loss of consortium.

Couple’s Testimony

At trial, both Christs testified that Susan Christ’s symptoms interfered with their relationship, as well as their ability to engage in their favorite pastimes, such as golf and walking. She also testified that she had trouble lifting things, washing her face, brushing her teeth, or doing things around the house that she previously did.

The defense questioned both the extent of her injuries and the likelihood they stemmed from the collision. It presented evidence of previous injuries, including a 2009 slip-and-fall and an earlier dog bite case, both of which resulted in settlements.

Before trial, the defense moved in limine to exclude evidence of Jon Christ’s six-month extramarital affair 14 years before trial. The defense discovered the affair because Susan Christ had volunteered the subject when asked about stress by a nurse during her medical treatment, and the nurse made a note of it.

San Diego Superior Court Judge Randa Trapp denied the motion but said the issue could be revisited during trial.

‘How Dare You’

When Schwartz’s attorney briefly asked about the affair, Susan Christ said she was happy in her 45-year relationship with her husband. Counsel then attempted to move on to another subject, but Christ insisted on referring back to the question, saying “I resent it.” When Trapp suggested, and Christ agreed, that a recess would be a good idea, Christ said “How dare you. How dare you.”

When court resumed, counsel again attempted to ask Christ about another subject, but she again spontaneously insisted on talking about why she and her husband stayed together after the affair, saying they went to a retreat “and it was about forgiveness.”

On redirect, Christ’s counsel engaged her in a detailed description of the affair.

The jury, after being instructed that liability was admitted and not at issue, returned a verdict awarding zero damages.

San Diego Superior Court Judge Ronald Prager, sitting on assignment in the Court of Appeal, wrote for the panel Friday that the plaintiffs forfeited their challenge to the denial of the motion in limine by not objecting when the issue was raised during the trial. Because Trapp ruled that the issue could be revisited, Prager explained, the pretrial ruling did not preserve the issue for appeal and Evidence Code §353 required an in-trial objection.

In any event, Prager went on to say, denial of the motion was not an abuse of discretion.

“By claiming loss of consortium and emphasizing the strength of their relationship to support their claim, Susan and Jon put their entire marital relationship at issue and represented that it was totally fine,” the jurist said. “Consequently, evidence of the extramarital affair was relevant to Jon’s claim for loss of love, companionship, comfort, affection, society, solace, moral support or the enjoyment of sexual relations.”

While the affair was dated, Prager said, its relevance was borne out by the fact that Susan Christ mentioned it during the medical exam, which took place just four years before trial.

Other Claim

The panel also rejected the Christs’ other claim of evidentiary error, which was that the trial judge erred in admitting photographs of the parties’ vehicles after the collision, because there was no biomechanical expert testimony to explain the relationship between physical damage to the vehicle and physical injury to its driver.

Prager said the subject was within the scope of lay understanding, and that the Christs could have called their own expert to make their point.

The jurist went on to say that even if Trapp did commit evidentiary error, it was harmless, because the jury could have, and obviously did, find that Susan Christ was not a credible witness with respect to her injury claims.

The case is Christ v. Schwartz, 16 S.O.S. 4107.


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