AN APPEAL TO REASON

Last week the Second Appellate District, Division Seven decided two related appeals. Both are unpublished but are of interest. In the first case, Cordero, Sr. v. Evans, Case No. 196589, the defendant appealed from a judgment of $329,700 for injuries suffered in a car accident. In October 2003, the Cordero family was riding in a car when they experienced a flat tire. They were stopped on the freeway and attempted to call for help when they were hit from behind by Shaun Evans. Cordero Sr. suffered significant injuries. He was in the hospital for two weeks, and during some of that time, he was in a coma.

The appeal raised issues of jury and attorney misconduct, and sufficiency of the evidence to support future economic damages. One argument made by the defendant below and on appeal was that Cordero Sr. would not receive the care plan presented at trial because he had been in jail since 2004, spent more than 40% of his life in jail, and since he was still in prison, it was unlikely he would receive such future care. Defendant also argued that because of Cordero Sr.'s criminal and drug background, his lifespan should be shortened.

The court noted that it does not sit in "judgment of a jury's common sense," and the tables of life expectancy included all males, including gang members. As to the attorney misconduct, the reviewing court held that Evans had forfeited any objection by failing to request that the jury be admonished. Even though the defense attorney objected to each question, the court stated, "A claim of misconduct cannot be considered on appeal unless the party timely objected and requested that the jury be admonished, unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice."

In the second appeal, Cordero, Jr. v. Evans, Case No. B197973, the trial court granted a nonsuit against the infant plaintiff. At trial, Evans admitted liability and the trial focused entirely on damages. The infant was fastened in his infant care seat when the collision occurred. Afterward, he was crying, screaming and vomiting. There was glass and some blood on his face; Cordero Jr. was bleeding and had a black eye. A blood clot or intracranial bleeding was suspected but it was ruled out. Of course, Cordero Jr. was in no position to testify as to his injuries.

The trial court found there was no evidence of injury, stating, "Because you're in the car doesn't mean you get damages for it." The trial court also rejected evidence that Cordero Jr. was in pain because he was crying "The baby was crying. There is no evidence the baby was in pain. The baby was crying." Go figure. The court of appeal reversed the judgment.