Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC037525, Judith A. Vander Lans, Judge.
Paul C. Horgan for Defendant and Appellant.
Law Offices of Perez & Perez and Alex B. Perez for Plaintiff and Respondent.
ALDRICH, J.
I.
INTRODUCTION
After defendant and appellant Jose M. Castillo stabbed plaintiff and respondent Matthew L. Cisneros, respondent won a judgment for personal injuries at a bench trial. Appellant appeals from the judgment. He does not address liability, but raises issues only with respect to causation and damages award. Appellant contends that the trial court erred in taking judicial notice of a Social Security Award. Appellant also argues respondent failed to introduce requisite testimony of a medical expert stating there was a reasonable medical probability that appellant caused respondent’s continuing injuries. We reverse and remand to the trial court for a trial solely on the issue of damages.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual history
Appellant and respondent became involved in a physical altercation outside of a bar called the Red Room, at which the two had been drinking with friends during the early morning hours of October 4, 2003. During the course of the confrontation, appellant stabbed respondent twice with a pocketknife that appellant used for his job as a United States Customs Agent. Respondent was taken to St. Mary Medical Center, where he was treated for stab wounds to the left side of his chest and abdomen. In addition, respondent underwent a thoracostomy, surgery to repair his diaphragm and pancreas, and surgery to remove his spleen, all of which had been lacerated during the stabbing. After his discharge, respondent, who had a history of asthma was hospitalized twice at University of California at Irvine Medical Center (hereinafter “UCI”) for complications that resulted from the stabbing. Appellant pled guilty to attempted murder, assault with a deadly weapon, and driving under the influence. He was sentenced to two years in prison.
A thoracostomy is defined as a “surgical creation of an opening in the wall of the chest for the purpose of drainage....” (Dorland’s Illustrated Medical Dict. (28th ed. 1994) p. 1705, col. 2.)
Appellant states that after respondent’s initial hospitalization at St. Mary’s Medical Center, respondent was hospitalized twice at UCI. There is some information in the record that after the initial hospitalization, respondent received medical treatment once at UCI and once at Western Medical.
B. Procedural history
Respondent brought a personal injury suit against appellant. The case proceeded in a bench trial.
1. Respondent’s case
At trial, respondent testified that while he had previously suffered from pericarditis and asthma, he had seen doctors several times following the stabbing because of pain in his left shoulder and the left side of his chest and shortness of breath. Further, respondent testified that he presently used an inhaler daily and relied on a breathing machine to help him breathe, which he did not need prior to the stabbing. He also testified that he now required several prescription medications to alleviate his pain, inability to breathe easily, and resultant insomnia and depression, including Vicodin, Albuterol, Prednisone, Advair, and Xanax. Further, respondent testified that before the stabbing, he lifted weights, skateboarded, and exercised several times a week, but now was unable to engage in any kind of physical activity as he experienced shortness of breath while walking and lifting objects. Finally, respondent testified that he had received money from a state-established victims’ compensation fund.
According to the testimony of appellant’s medical expert, pericarditis is “the inflammation of the outside lining of the heart.... If that tissue is inflamed, it causes pain.”
Respondent admitted, however, that he had used Albuterol prior to the stabbing as well.
It appears that respondent was obligated to repay the money he obtained from the victims’ compensation fund.
Respondent offered no testimony by a medical expert to support his claim for damages or to support his argument that the stabbing caused his continuing injuries. Appellant vigorously objected to respondent’s presentation of the evidence. Appellant argued that medical testimony was necessary to establish the causation element of the prima facie case.
In addition, respondent testified that as a result of the stabbing and its concomitant complications, he was no longer able to work as a fiber-optic technician. In support of his testimony, respondent offered an award issued by the Social Security Administration. The administrative law judge found respondent was disabled. The administrative law judge based his findings on a medical examination dated February 24, 2005, in which a physician had diagnosed respondent as suffering from asthma and two stab wounds. On the basis of this report, the Social Security Administration award stated that “the claimant’s medically determinable impairments could reasonably be expected to produce the alleged symptoms, and that the claimant’s statements concerning the intensity, duration and limiting effects of these symptoms are generally credible.” (Original underlining deleted.) The trial court took judicial notice of the Social Security Award and all findings contained therein, over appellant’s objection.
2. Appellant’s case
Appellant offered the testimony of Dr. Sheldon Reiss as a medical expert. Dr. Reiss testified that respondent’s continuing injuries were inconsistent with the stab wounds he suffered. Specifically, Dr. Reiss testified that most people who suffer from such wounds generally feel no pain after recovering from surgery. Though Dr. Reiss speculated it was possible that the stabbing caused respondent’s continuing injuries, he testified it was highly improbable that the stabbing caused those injuries. Appellant conceded he was responsible for the medical expenses respondent incurred at St. Mary’s Medical Center and UCI. However, appellant argued he was not responsible for the total amount billed, but rather the sums which the hospitals later accepted as payment in full.
On direct examination, Dr. Reiss testified: “I have seen a fair number of patients with traumatic injuries to the chest.... And by and large, people that have surgery of the chest, traumatic injuries to the chest recover with minimal pain or usually no pain. [¶]... [¶] In reviewing the records, I see [respondent visited] the hospital and emergency rooms before the injury, and the symptoms sounded similar to the symptoms after the injury which is chest pain and some shortness of breath. I know he has a history of asthma. I know he has a history of pericarditis. And I know there was a mention in the records of pleuritic chest pain which means that’s aggravated both before and after the injury. [¶] So is it possible that the pain could be due to the stab wound? I suppose it is. Is it likely? I would think not.”
3. The trial court’s decision
On July 3, 2008, the trial court found that the stabbing had in fact caused respondent’s continuing injuries, and awarded respondent damages in the amount of $197,379. In its findings, the court itemized the damages as follows:
St. Mary Medical Center
$ 21,791.00
UCI
$ 2,132.00
Victim’s Compensation
$ 33,656.00
Medications
$ 4,800.00
Lost Wages
$ 35,000.00
Pain and suffering
$100,000.00
Appellant filed a timely notice of appeal. Appellant admits that he caused respondent’s injuries through the date of respondent’s last hospitalization in December 2003. Thus, he does not contest that he is responsible for the expenses respondent incurred at St. Mary’s Medical Center and UCI. Appellant also admits he must reimburse respondent for victim’s compensation, medications, lost wages, and pain and suffering through December 2003. Appellant argues he should not be liable for any injuries that respondent claimed he suffered after December 2003.
III.
CONTENTIONS
Appellant contends that there was insufficient evidence to prove a causal link between appellant’s conduct and respondent’s continuing injuries. Specifically, appellant argues that respondent failed to introduce testimony by a medical expert establishing to a reasonable medical probability that the stabbing caused respondent’s continuing injuries. We hold that the trial court committed an error of law as respondent was required to provide expert testimony to establish causation.
Appellant further asserts that the trial court erred in taking judicial notice of the findings of fact and conclusions of law in the Social Security Award. We hold that it was prejudicial error for the trial court to take judicial notice of the factual findings contained within the administrative decision.
IV.
DISCUSSION
A. Respondent was required to introduce expert testimony to establish to a reasonable medical probability that the stabbing caused respondent’s continuing injuries.
1. The requirement of expert testimony in establishing causation in personal injury cases
Appellant contends that, as a matter of law, respondent failed to introduce adequate evidence to establish proximate causation. We agree.
In a personal injury claim, the plaintiff is required to prove that the defendant’s conduct was the proximate cause of the plaintiff’s injuries. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403 (Jones).) Ordinarily, a plaintiff may establish proximate cause without the testimony of an expert by providing evidence that indicates the defendant’s conduct was a substantial factor in producing plaintiff’s damages. (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [“[t]o establish the element of actual causation, it must be shown that the defendant’s act or omission was a substantial factor in bringing about the injury.”].) However, as the court in Jones held, “[t]he law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Jones, supra, at pp. 402-403 (italics added); accord Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1385 [in personal injury case, “causation must be founded upon expert testimony and cannot be inferred from the jury’s consideration of the totality of the circumstances unless those circumstances include the requisite expert testimony on causation”].)
Expert testimony is required to establish causation to a reasonable medical probability because knowledge of injuries that are wholly subjective is generally beyond the common experience of the average fact finder. (Evid. Code, § 801, subd. (a); Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1116-1117; Oliveira v. Warren (1938) 24 Cal.App.2d 712, 716 (Oliveira).) Accordingly, in establishing causation in a personal injury case, a victim’s own self-interested testimony may not serve as a surrogate for the testimony of a medical expert. For example, in Oliveira, the plaintiff was involved in a car accident and suffered injuries to her knee, forehead, and coccyx, as well as headaches and dizziness. (Oliveira, supra, at pp. 713, 714-715.) The appellate court held that because the plaintiff introduced expert testimony stating that the car accident probably caused plaintiff’s injuries, there was sufficient evidence to support the jury’s finding of causation. Such evidence was required because the plaintiff’s injuries were wholly subjective. (Id. at pp. 716-717.)
Expert testimony is also required to establish causation in personal injury lawsuits where the injuries could have multiple causes, as proof of such causes requires scientific or medical evidence beyond the common experience of the average fact finder. (Evid. Code, § 801, subd. (a).) For example, in Jones, supra, 163 Cal.App.3d. 396, the plaintiff sued the producer of oral contraceptives after she developed cancer. (Id. at p.399.) Jones held that medical testimony was required to prove causation because cancer can be caused by any of a number of different carcinogens and “ ‘the unknown and mysterious etiology of cancer’ is beyond the experience of laymen and can only be explained through expert testimony. [Citation.]” (Id. at p. 403.) Accordingly, even where there are multiple causes of an injury, so long as a medical expert testifies that it is reasonably probable that one of these causes produced the injury to the exclusion of all others, this testimony will be sufficient to support the prima facie case. (Cf. Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 790-792[holding doctor’s testimony that positional asphyxia, rather than plaintiff’s enlarged heart, artery anomaly, or ingestion of cocaine was a medically probable cause of plaintiff’s death was sufficient to establish proximate cause].) Thus, where injuries have multiple possible causes, expert testimony is required to establish, to a reasonable medical possibility, that the defendant’s conduct caused the plaintiff’s injuries.
In the case at hand, both respondent’s testimony and his medical records indicated that his continuing injuries included pain and shortness of breath. Respondent testified that prior to the stabbing he suffered from pericarditis. His medical records indicated that he went to the hospital as few as eight months before the stabbing complaining of “sudden onset of sharp left-sided chest pain radiating into his left shoulder.” At trial, respondent testified that after the stabbing, he suffered from “a pinching, radiating pain” that extended from the left side of his chest into his left shoulder. Respondent further testified that before the stabbing, he had a history of asthma, but used an Albuterol inhaler less than once a day. He testified that after the altercation he experienced shortness of breath consistently and used an inhaler and breathing machine daily. Additionally, respondent stated that since the stabbing, he was unable to engage in physical activity and experienced insomnia and depression. In his testimony, respondent indicated that he currently used Vicodin, Albuterol, Prednisone, Advair, and Xanax to manage his continuing injuries. Respondent claimed all of these injuries, which he testified were present at the time of trial, resulted from pain and shortness of breath. We address the necessity for expert testimony with respect to respondent’s pain and shortness of breath separately.
2. Respondent was required to introduce the testimony of a medical expert to prove that the stabbing caused his continuing pain.
The trial court erred when it found that respondent had proven causation because respondent failed to introduce expert testimony as pain is a subjective injury and pain has a multitude of possible causes.
According to appellant’s medical expert, “pain by its nature is a subjective symptom.... ¶ [I]f someone says they have pain, you look for a cause that you can identify to conclude that you understand the source of the pain. In this case there was no way to prove that there’s pain, and there is no way apparently from the tests that were done to determine what caused the pain if it indeed was there.” Because the subjectivity of pain is beyond the common experience of the average fact finder, the testimony of a medical expert was required to prove that there was a reasonable medical probability that the stabbing caused respondent’s continuing pain. (Oliveira, supra, 24 Cal.App.2d at p. 716.)
In addition, expert testimony was required to prove causation with respect to respondent’s continuing pain because his pain had a multitude of possible causes. The two most obvious causes of respondent’s continuing pain were either his pre-existing pericarditis or the stabbing. Nonetheless, it was entirely possible that there were other undiagnosed causes of respondent’s continuing pain. For example, appellant’s medical expert testified that “there is no way apparently from the tests that were done to determine what caused the pain if it indeed was there,” which indicates that the possible causes of respondent’s pain were not limited to only respondent’s pre-existing pericarditis and the stabbing. Because appellant would not be liable if the pre-existing pericarditis alone or some other undiagnosed condition was responsible for producing respondent’s continuing pain, and because there were multiple potential causes of respondent’s pain, testimony of a medical expert was required.
3. Respondent was required to introduce expert medical testimony to prove that the stabbing caused his continuing shortness of breath.
Respondent’s continuing shortness of breath could have been caused either by his pre-existing asthma or by the stabbing. Much like respondent’s pain, if respondent’s shortness of breath was caused by his pre-existing asthma alone, rather than the stabbing, appellant would not be liable for these injuries. Moreover, respondent’s medical records from after the stabbing stated, “evaluate for possible [shortness of breath],” “secondarily to asthma versus traumatic injury.” Dr. Reiss explained that this meant that respondent’s “physician... wasn’t sure whether the shortness of breath was due to [respondent’s asthma or the stabbing].” As respondent’s continuing shortness of breath had multiple possible causes, the trial court erred in making a factual finding in the absence of respondent’s introduction of expert medical testimony.
Consequently, respondent was required to introduce the testimony of a medical expert to explain that there was a reasonable medical probability that the stabbing caused respondent’s injuries occurring after December 2003. Respondent therefore failed to show that the stabbing caused his continuing pain and shortness of breath.
B. Judicial notice of the factual findings contained within the Social Security Award was both improper and prejudicial.
Appellant argues that while the trial court may properly have taken judicial notice of the fact that the Social Security Administration granted respondent a disability award, it was improper for the court to take judicial notice of the findings of fact and conclusions of law contained therein. We agree.
Judicial notice is meant to serve as a substitute for formal proof. Evidence that is judicially noticed is given a conclusive presumption of truth and, therefore, no evidence can be offered to dispute judicially noticed evidence. (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1051.) As such, judicial notice of evidence is only proper when the evidence is “not reasonably subject to dispute....” (Evid. Code, § 452, subd. (h) .) Treating evidence that is admitted via judicial notice as conclusive raises important concerns because while judicial notice is meant to promote efficiency and reduce litigation costs, it may gravely affect a party’s ability to fully and fairly litigate a dispute. Accordingly, though the Evidence Code permits courts to take judicial notice of the decisions and records of courts of any of the states (Evid. Code, §§ 451, subd. (a), 452, subds. (a), (d)), judicial notice does not extend to the truth of hearsay statements contained in such records. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) As the Court of Appeal noted in Sosinsky v. Grant (1992) 6 Cal.App.4th 1548 at page 1565 (Sosinsky), “the taking of judicial notice that the judge believed A (i.e., that the judge ruled in favor of A on a particular factual dispute) is different from the taking of judicial notice that A’s testimony must necessarily have been true simply because the judge believed A and not B.”
Therefore, while it may be proper to notice the fact that a judge made a particular finding, it is improper to notice the truth of such a finding because the finding is not considered indisputably true. In Sosinsky, the Court of Appeal upheld a trial court’s refusal to take judicial notice of the truth of the statements contained in a court file including the pleadings, motion for summary judgment, and statement of decision. (Sosinsky, supra, 6 Cal.App.4th at pp. 1569-1570.) Indeed, we implicitly accepted Sosinsky’s line of reasoning in HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204 at pages 216 to 217, footnote 7. We cited Sosinsky as standing for the proposition that a court “may take judicial notice that trial court made findings, but judicial notice [is] not properly taken of the truth of the factual findings of the trial judge,” in support of our holding that a party was barred from raising judicial notice on appeal if it did not do so at trial. (Ibid.) Likewise, Justice Epstein relied on Sosinsky in O’Neill v. Novartis Consumer Health, Inc. (2007) 147 Cal.App.4th 1388 (O’Neill), when he concluded that a trial court properly refused to take judicial notice of the truth of a court’s factual determinations in its denial of summary judgment. “A court may take judicial notice of a court’s action, but may not use it to prove the truth of the facts found and recited. [Citations.]” (Id. at p. 1405; see also Kilroy v. Stateof California (2004) 119 Cal.App.4th 140, 150 [permissible to judicially notice the fact that a judge ruled to suppress evidence, but improper to take judicial notice of judge’s findings supporting the order].)
Here, the Social Security Administration administrative law judge found that respondent was legally disabled and therefore entitled to disability insurance benefits. The award was issued by an administrative judge on the basis of respondent’s medical records which stated that he suffered from asthma and two stab wounds and contained in relevant part the following findings of fact and conclusions of law:
(1) Respondent suffers from severe impairments to his heart, lung, pancreas, and diaphragm.
(2) Respondent is unable to perform even sedentary work for a 40-hour work week.
(3) Respondent’s medical impairments could be reasonably expected to cause his continuing medical problems.
(4) Respondent’s representations of his continuing injuries are credible.
(5) Respondent’s prior job skills do not transfer to other occupations that he could be expected to perform based on his limited physical abilities.
(6) Respondent has been disabled since October 3, 2003.
While it would have been appropriate for the trial court to have noticed the determination of disability status itself, the factual findings contained within the award, and upon which the award was based, are necessarily hearsay statements that are, by definition, reasonably subject to dispute. For example, the administrative law judge found that the injuries respondent incurred as a result of the stabbing and his asthma likely produced respondent’s continuing injuries and that respondent’s statements regarding his symptoms were believable. Sosinsky, supra, 6 Cal.App.4th 1548 and O’Neill, supra, 147 Cal.App.4th 1388,however,dictate that it would have been proper for the trial court to have taken judicial notice of the fact that respondent had been found disabled, but it was improper for the trial court to take judicial notice of the truth of the findings of fact regarding respondent’s disability.
By taking judicial notice of the Social Security Award and its findings, the trial court hindered appellant’s opportunity to litigate his case and thereby offended important policy considerations underlying the concept of judicial notice. Judicial notice seeks to promote efficiency during litigation, provided that notice of evidence will not deny a party a full and fair opportunity to litigate his claim. Here, the trial court’s notice of the Social Security Award denied appellant the opportunity to present evidence that contradicted the fact that the stabbing necessarily caused respondent’s continuing medical impairments. Consequently, the trial court effectively established causation based solely on the administrative law judge’s findings. While the administrative law judge may have been an expert on social security law, he was by no means a medical expert and thus his findings were not indisputable.
We note that on appeal, respondent cites no authority in support of his claim that judicial notice of the findings of fact in the Social Security Administration decision was proper. Because the relevant case law supports appellant’s contention, we have no choice but to reverse the trial court’s ruling on judicial notice.
V.
CONCLUSION
The trial court made errors of law when it found that appellant’s actions caused respondent’s injuries because the trial court did so based upon respondent’s testimony and the erroneous introduction of the hearsay findings contained in the Social Security Award, without required expert testimony. Appellant concedes that his actions caused respondent’s injuries from the time of the stabbing up to and including respondent’s December 2003 hospitalizations. In that the trial court did not differentiate between the injuries prior to or after December 2003, and because the trial court made errors of law, we remand to the trial court for a new trial limited to damages.
VI.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for a new trial limited to the issue of damages. Costs are awarded to appellant Jose M. Castillo.
We concur: KLEIN, P. J., KITCHING, J.