Thursday, November 20, 2025
Page 3
Court of Appeal:
Error to Let Expert Opine Future Costs Based on Phone Calls
By a MetNews Staff Writer
The Court of Appeal has reversed a portion of a judgment against the City of Norwalk in an action for catastrophic injuries suffered by a passenger on a bus who hit her head on a metal seat frame and dropped to the floor when the driver suddenly started up while she was walking to the front, holding that a $1.6 million award for future medical costs, stemming in part from expert testimony that was based on three phone calls, cannot stand.
The court remanded for a limited retrial on future economic damages. Left intact is a 2.6 million award in favor of Maria Fernandez based on past and future noneconomic losses.
Liability was not disputed.
Tuesday’s unpublished opinion was authored by Justice Michelle C. Kim of this district’s Div. One. It examines a judgment, pursuant to a jury verdict, by Los Angeles Superior Court Judge Julian C. Recana.
The partial reversal is tied to Recana’s denial of a motion in limine to exclude testimony of Santa Monica neurologist Daniel Franc concerning Fernandez’s prospective assisted living expenses, a component of the future-damages award. He estimated that particular future loss at $783,000.
However, Franc did not testify based on his knowledge of assisted living costs in Santa Monica but on what was told to him by telephoning three facilities in Norwalk as to what was charged there. He acknowledged in his testimony that such costs are “very wildly different” in various areas.
Kim said the testimony should have been excluded under two Evidence Code sections.
Evidence Code §801
She pointed to §801 which provides that testimony by a person designated as an expert must be “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing…that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates….”
The justice wrote:
“No evidence permitted an inference that the unidentified recipients of Dr. Franc’s phone calls were reliable sources regarding reasonable costs. Indeed. Dr. Franc supplied no information about the recipients, and did not claim that he evaluated their representations to determine whether the costs they stated were unreasonable, inflated, or inaccurate. Nor did he claim that his informal telephone survey of a handful of assisted living facilities was the type on which medical experts reasonably rely in ascertaining reasonable costs. Thus, we conclude that Dr. Franc’s opinion regarding assisted living costs in Norwalk was inadmissible under section 801 because it was based on unreliable matter.”
Evidence Code §802
She continued:
“For similar reasons, we conclude that Dr. Franc’s opinion was inadmissible under section 802.”
That section says:
“A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion….”
Kim said that Franc’s testimony “indicated that the sole reason for his opinion that Fernandez’s assisted living care in Norwalk would reasonably cost $7,000 to $11,000 per month was that the unidentified recipients of his phone calls had told him so,” declaring:
“Dr. Franc did not purport to apply any expertise to evaluate the information supplied on these calls. He thus provided inadequate reasons for his opinion to render it helpful to the jury.”
Respondent’s Contention
Fernandez argued on appeal that the entire award for future damages of $1,579,500 should be affirmed but, if not, that the sole focus should be on the $783,000 that was based on the amount Franc testified represented future assisted-living costs. Kim disagreed, saying that the jury voted to award a flat sum of $1,579,500 for future medical expenses and those relating to assisted living cannot be separated. She wrote:
Thus, the record does not enable us to identify the portion of the award affected by the prejudicial evidentiary error with sufficient certainty to ensure that reversing only a portion of the award would cure the prejudice and safeguard the City’s right to a fair trial….
“Moreover, if the jury at the new trial heard expert opinion from Dr. Franc or a replacement expert only as to the costs of assisted living, the City’s ability to impeach the expert’s credibility as to assisted living costs might be prejudiced by the absence of any opportunity to expose weaknesses in the expert’s opinions regarding other costs.”
The case is Fernandez v. City of Norwalk, B343992.
Representing the plaintiff were Justin Paul Dixon of the La Habra-based Dixon Law, APC, Whittier attorney Christopher Rene Montes de Oca, and Zareh A. Jaltorossian of the Pasadena firm KP Law. Acting for the defendants were Daniel P. Barer and Karen M. Stepanyan of the Los Angeles firm of Pollak Vida & Barer, as well as Michael L. Wroniak and James Lee of the Orange County office of Collins + Collins, LLP.
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