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Court of Appeal:
Jury’s $1.8 Million Noneconomic-Damage Award Stands
No Reversal Over Judge Allowing Lawyer to Tell Prospective Jurors That Verdict Could Exceed $1 Million
By a MetNews Staff Writer
The Court of Appeal for this district yesterday upheld a $1,780,250 judgment based on a traffic-accident victim’s past and future noneconomic damages, holding that a Los Angeles Superior Court judge did not commit reversible error by permitting the plaintiff’s lawyer to allude in a “miniopening” statement preceding voir dire to the possibility of damages exceeding $1 million.
Justice Dorothy Kim of Div. Five declared that the judge, George F. Bird, did not abuse his discretion in denying a motion in limine to “preclude plaintiff counsel from preconditioning jurors during voir dire and opening statements with hypothetical or dollar figures specific to the case (‘anchoring’).” Bird told counsel:
“[D]iscuss what you believe the evidence will show, and if the dollar amounts come out of your mouth, that’s going to be okay.”
A lawyer for plaintiff George Wilkie told the prospective jurors:
“You all will be determining what the pain and suffering damages for . . . these injuries will be. That will be your obligation. And at the end of the case we will be asking you for pain and suffering damages that could exceed, based on the evidence, $1 million.”
Kim’s Opinion
In her unpublished opinion affirming the judgment, Kim noted that it is impermissible for counsel to use voir dire to “indoctrinate” jurors. She declared:
“Even assuming that the trial court erred in allowing plaintiff to reference a specific amount of damages in his voir dire, any such error was harmless.”
Kim continued:
“Plaintiff’s counsel made an isolated reference to a specific amount of damages, $1 million, during his initial miniopening statement. He did not repeat the reference during his second miniopening statement, voir dire questioning, or opening statement. Further, the court repeatedly instructed the jury that the arguments and statements of the attorneys were not evidence. On this record, plaintiff cannot demonstrate that he was prejudiced by the court’s assumed error.”
Excessive Damages
Defendant/appellant Michel Jean Philippe also asserted that the award—$959,000 in past noneconomic damages and $821,250 in future noneconomic damages—were excessive. They pointed out that Wilkie, age 70 at the time of trial in 2022, had not been hospitalized, claimed no medical expenses, treated his injuries with ice and aspirin, and was able to ride a bicycle.
Kim responded:
“There was substantial evidence that plaintiff experienced significant pain and discomfort following the collision that persisted throughout the seven-year period prior to trial. Plaintiff reported experiencing significant pain and numbness, which were not alleviated by treatment. The evidence also supported a reasonable inference that plaintiff experienced, during that same time, frustration and sadness from not being able to enjoy activities that were part of his daily routine prior to the collision. Following the accident, plaintiff was unable to surf. And, he was substantially limited in his ability to perform car restoration work and to ride bikes.”
Appellate Courts’ Role
She added:
“Although reasonable minds could differ about the appropriate amounts for past and future noneconomic awards, on appeal, we do not second guess the jury or the trial court. We are limited to determining whether the awards when measured against the evidence in support of them—giving that evidence every reasonable inference and resolving all conflicts in favor of the verdicts—are so shocking as to support an inference that they were the result of passion or prejudice. On this record, we conclude that the damages awards were not excessive.”
The case is Wilkie v. Philippe, B321340.
Santa Monica attorney Steven B. Stevens represented Wilkie. Acting for Phillippe were Edye A. Hill, Neil S. Tardiff and Robert Reisinger of the Long Beach firm of Ford, Walker, Haggerty & Behar.
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