Filed 7/23/14 Seamans v. Xiong CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

LAURINDA SEAMANS, Plaintiff and Appellant,

v. XANG XIONG et al., Defendants and Respondents. F067034 (Super. Ct. No. MCV057322)


### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. McClaugherty & Associates and Jay S. McClaugherty fo r Plaintiff and Appellant. Cholakian & Associates, Kevin K. Cholakian and Jeremy M. Jessup for Defendants and Respondents.

-ooOooPlaintiff appeals from the ju dgment against her in a personal injury action arising
out of a motor vehicle accident. She cha llenges admission of certain testimony by

* Before Hill, P. J., Levy, J. and Detjen, J.2 defendants’ expert witness, asserting it was be yond his expertise and beyond the scope of the opinions he indicated in hi s deposition that he would offer at trial. We conclude the
trial court did not abuse its broad discretion by admitting the testimony; the expert did not exceed the scope of his depositio n testimony and plaintiff faile d to demonstrate that the challenged testimony was outside his area of expertise. Further, it is not reasonably probable a more favorable re sult would have ensued in th e absence of the challenged testimony; any error was not prejudicial. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was traveling on Avenue 26, a straight, bumpy farm road, behind a chicken truck belonging to defendant, Palmer Farms, and driven by defendant, Xang Xiong. She decided to pass the truck. Ac cording to Greg Conn er, a witness who was driving a car approaching from the opposite di rection, plaintiff pulle d into the oncoming traffic lane and, about the time her pickup wa s side by side with the chicken truck, the truck began a left turn into the driveway of Palmer Farms. The two collided and plaintiff’s pickup left the roadway and ro lled over two to four times. When Conner arrived at the scene, plaintiff had climbe d out the driver’s door, which was facing upward, and he helped her down. At trial, there was differing testimony re garding the speed of defendants’ truck, how long plaintiff was in the oncoming tra ffic lane before the collision, and whether Xiong was preparing to turn left before or at the same time plaintiff began her passing maneuver. Plaintiff and Xiong bot h testified they signaled be fore moving or turning to
the left. Conner testified he did not se e a turn signal on either vehicle. Plaintiff’s trucking expert testified plaintiff’s pickup would have been in Xiong’s line of sight in his side mirror if he had l ooked in the mirror while she was passing in the oncoming traffic lane. Plainti ff’s accident reconstruction expe rt testified plaintiff began her lane change well before the chicken truc k began its left turn, and her pickup would3 have been visible in Xiong’s side mirror as soon as it entered the passing lane.
Defendants’ accident reconstruc tion expert testifie d that his engineer ing calculations resulted in a range of possibilities and, because of the slow speed of defendants’ truck, it
could not be determined whether defendants’ truck began its turn before or after plaintiff’s pickup moved into the oncoming traffic lane. The final witness was defendants’ trucking expert, Lewis Grill. He opined that Xiong acted properly in checking his side mirr or a few seconds before he began his left turn and not checking it again as he began turn ing because at that point his attention was properly on what was ahead of him. Af ter drawing Grill’s attention to Conner’s testimony that he did not see either vehicle display a turn signal, defense counsel asked Grill how far away a driver would be able to observe whether an oncoming vehicle had a turn signal on or not. Plai ntiff’s counsel objected that the question called for a human factors opinion, called for an opinion that was not given by Grill at his deposition, and was beyond the scope of dire ct examination. The court overruled the objections. Grill
testified:
“In two and a half million miles of driv ing trucks and in visiting that scene, let’s call it the accident scene, wh en you look to eastbound where Mr. Conner was because he was driving we stbound and Mr. Conner says about a quarter of a mile away, the next turn after Palmer Farms is a street that’s up there that I estimate to be probably about a quarter of a mile away. A tractor trailer had come out of that street going I guess that would be southbound to make a right-hand turn and go west onto 26 which would be approximately the same distance and sa me direction as Mr. Conner and he either didn’t use his turn signal or didn ’t have it on. But you wouldn’t be able to see it from that distance. Federal Moto r Vehicle Safety standards only set it up so that it needs to be s een from 500 feet away. Quarter of a mile is 1380 feet. And so, you know, I’m not trying to downplay Mr. Conner, but unless he has binoculars, I don’t see how he’d know that.” There were no further questio ns from either attorney.4 Before closing arguments, plaintiff made a motion for mistrial based on Grill’s opinion about the turn signals. The trial court denied it. The jury returned a verdict in
favor of defendants. Plainti ff subsequently moved for a new trial, asserting plaintiff was surprised by Grill’s unexpected testimony rega rding visibility of the turn signals. The trial court denied that motion. Plaintiff appe als, contending it was error to permit Grill to testify to an opinion that was not within his area of expertise and was not expressed in his deposition. Plaintiff challenges the judgment a nd the denial of her motion for a new trial.
DISCUSSION
I. Standard of Review “A trial court’s ruling on the admissibility of evidence is gene rally reviewed for abuse of discretion.” ( Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.) “‘“The burden is on the party complaining to establish an abuse of discretion ....”’ [Citation.]” ( Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) “‘An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances,
the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] The abuse of discretion standard affords considerable de ference to the trial court, provided that the court acted in accord ance with the governing rules of law.’” ( Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4t h 1470, 1474-1475.)
“A motion for a new trial is directed to the sound discretion of the trial judge, who must pass upon the credibility of the witnesses and the weight and probative force of their testimony.” ( Myles v. Los Angeles Ry. Corp. (1943) 62 Cal.App.2d 14, 17.) The trial
court’s decision “will not be disturbed in the absence of a clear and affirmative showing of gross, manifest, or unmistakable a buse of discretion. [Citation.]” ( Flores v. McCoy (1960) 186 Cal.App.2d 502, 506.)5 II. Admissibility of Evidence abou t Visibility of Turn Signals A party to litigation may make a demand for an exchange of information about expert witnesses the parties intend to call at trial. (Code Civ. Proc., § 2034.220.) 1 If the demand is made, all parties must exchange lists of the expert witnesses they plan to call at trial, or state that they do not intend to offer any expert testimony. (§ 2034.260, subds. (a), (b).) For any expert witnesses retained by a party to give expert testimony, the exchange must include a declar ation setting out the qualificati ons of the expert and “the general substance of the testimony that the e xpert is expected to give.” (§ 2034.260, subd. (c)(1), (2).) “As interpreted by the California courts, this requires a party to
‘disclose the substance of the f acts and the opinions to which th e expert will testify, either in his witness exchange list, or in his deposition, or both.’ [Citations.]” ( Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1 244, 1257-1258, italics omitted.) It does not require disclosure of specific facts and opinions. ( Id . at p. 1258.) Defendants’ expert witness designation in cluded Grill as a retained expert. The accompanying declaration stated Grill would te stify to “issues relating to the safe operational practices of commercial truck driv ers and associated standards of care; the practical operation of commercial trucks on highways, operation of commercial trucks for turning maneuvers, issues of evasive mane uvers and accident avoidance in commercial trucks”; it also stated Grill would give rebuttal testimony, related to his field of expertise. In his deposition, Grill listed te n opinions he had re ached. Opinion 4 was that plaintiff was not paying attention or driving defensively and, as she approached defendants’ vehicle, she did not notice it was preparing to make a turn; opinion 6 was that Xiong signaled his left turn by activ ating his turn signal and slow ing sufficiently to make the turn. In his deposition, Grill stated his opinion that Xiong si gnaled his turn by activating

1 All further statutory references are to th e Code of Civil Pro cedure unless otherwise indicated.6 the turn signal and slowing down was based on the following facts: Xiong was turning into Palmer Farms on the left, and he testifie d he activated his turn signal. The truck could not have made the turn at a high rate of speed, so it had to slow down; Xiong also
said he slowed down from 40 or 45 miles per hour, to 25, then to 4 miles per hour. Additionally, Conner indicated the truck slow ed down considerably . Grill stated his opinion was based on the testimony of Xio ng and Conner, physic s, logic, and the testimony of defendants’ accide nt reconstruction expert. After Grill discussed his ten opinions in his deposition, he was asked whether that was a ll the opinions about which he intended to testify at trial, and Grill answered affirmativ ely. He then added: “[Y]ou have all of my opinions that are based on the information and material that I read today and that I rende r in this case at this point in time. However, I reserve the right to supplem ent my opinions predicated on new information that becomes av ailable to me and other investigation that I may do into this case if asked, and I don’t know what you’re going to ask me at trial.” During cross-examination at trial, plain tiff’s attorney asked Grill if he was aware that a witness testified Xiong did not put his turn signal on. Grill responded: “I’m aware that Mr. Conner said he didn’t see a turn signal. He doesn’t know if he put it on or not.
He doesn’t know what Mr. Xi ong would know.” On redire ct, defense counsel asked Grill to recall Conner’s testimony that he did not see a signal on defendan ts’ truck; he asked Grill, as a truck driver, how far in distance a truck driver would be able to observe whether oncoming vehicles had their signals on or not. Gr ill then gave the challenged response suggesting Conner, a quarter of a m ile away, was too far away to see whether the parties’ turn signal s were turned on. At the hearing of plaintiff’s motion for a new trial, after reviewing the transcript of Grill’s deposition and its discu ssion of Grill’s sixth opinion, the trial court stated: “Now, when Conner testified at tria l that he didn’t see the signal and ... that point was ... made to Grill duri ng cross-examination, well, Mr. Grill7 would naturally address that. And it se ems to me that it would be natural for Mr. Grill to support his opinion. So given the fact that his sixth opinion relates directly to whether Xiong turned his signal on before he started his turn or not, it’s hard fo r me to conclude that th ere is surprise that the witness who indicated that that was one of his opinions would testify at trial regarding that opinion.” The trial court concluded Grill’s deposition made clear the issues he would addr ess, and his trial testimony was consistent with what wa s in his deposition. Accordingly, it found no error in allowing the testimony to be admitted. “When an expert deponent te stifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to o ffer additional opinions at trial.” ( Jones v. Moore (2000) 80 Cal.App.4th 557, 564-565 ( Jones ).) Where, however, the opinion expressed at trial is within the general amb it of the facts and opinions th e expert has disclosed in his deposition, and does not involve a new area of inquiry not previously disclosed, the trial
court does not abuse its disc retion by permitting the expert to express that opinion. ( DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 165.) In his deposition, Grill testified to his opi nion that Xiong signaled his left turn by activating his turn signal and slowing down. He based his opinion on the testimony of Xiong and Conner, physics, logic, a nd the testimony of defendants’ accident reconstruction expert. He specifically based his opinion that Xiong activated his turn signal on Xiong’s testimony. At his depo sition, Grill was not asked to comment on plaintiff’s or Conner’s testimony that they did not see Xiong’s turn signal. When asked at trial about Conner’s testimony, Grill expa nded on his already e xpressed opinion that Xiong activated his signal by relating his experi ence at the accident site, where he was
unable to see whether the turn signal on a truck approximately a quarter of a mile away was activated, and by stating the federal standard for visibility of turn signals is 500 feet. The challenged testimony did no t address a new area of inquiry, outside the opinions8 expressed in Grill’s deposition. Consequently, we conclude the trial court did not abuse its discretion by overruling plainti ff’s objection to Grill’s testimony.
Plaintiff also seems to contend her moti on for new trial should have been granted on the ground of surprise becau se Grill testified to a new opinion not disclosed in his deposition. A new trial may be granted on th e ground of “[a]ccident or surprise, which ordinary prudence could not have guarded agai nst.” (§ 657, subd. (3).) “‘The “surprise” mentioned by the statute must be the result of some fact or circumstance or situation occurring at the trial which could not in th e nature of the case reasonably have been anticipated would arise and which is of such importance or magnitude in its influence upon the result arrived at from the trial as to have produced as against him or his rights injury or damage. The mere giving of testimony contrary to the interests of a party, or even the fact that false testimony has thus be en given, although wholly unexpected by the party against whom it is given, will not its elf always operate as a predicate for the awarding of a new trial of the issue.’” ( Wilson v. Kopp (1952) 114 Cal.App.2d 198, 206- 207 ( Wilson ).) The question on appeal from the denial of a new trial motion is “whether, on the affidavits submitted, the trial court was compe lled to grant the new trial, not whether the
affidavits would have supported an order granting the new trial.” ( Wilson, supra, 114 Cal.App.2d at p. 205.) “[T]he precise questi on presented is whether the trial court, as a matter of law, abused [its] discretion in denying the motion.” ( Ibid .) “While a trial court may grant a motion for a new trial on [the gr ound of surprise] wh ere it appears that a party is misled by a witness as to the evid ence expected from him, or is unexpectedly presented with claimed perjured testimony, th e court is not compelled to grant the motion
where the evidence relates to an issue that is ob viously within the issu es to be tried.” ( Id

. at p. 206.)9 The trial court was not, as a matter of la w, required to grant plaintiff’s motion for
new trial. It exercised its discretion and de termined the matter abou t which Grill testified was not only within the issues to be tried, bu t was within the scope of the issues to which he testified in his deposition. We find no error in that determination. The cases relied on by plainti ff are distinguishable. In Kennemur v. State of California (1982) 133 Cal.App.3d 907 ( Kennemur ), a defense accident reconstruction expert testified the automobile accident in issue was caused when plaintiff steered her Volkswagen Super Beetle (VW) to the left across the center line into the path of another vehicle. ( Id . at p. 912.) He based his opinion on tire tracks on the roadway in photographs of the scene. Plaintiff proposed to rebut this testimony with her accident reconstruction expert, Ted Mitchell. ( Ibid .) In three depositions of Mitchell taken before trial, however, he consistently denied having any opinions about roadway issues,
indicated his work was limited to issues related to the VW , and stated another expert designated by plaintiff would address roadway issues. ( Id . at pp. 912-914.) The trial court excluded Mitchell’s testimony and th e appellate court found no error. “The decisive fact in the present case is [plainti ff’s] failure to disclose Mitchell’s expected testimony concerning the tire tracks either at Mitchell’s depositi on or as required by
section 2037.3.” 2 ( Kennemur, at p. 918, fn. omitted.) “The fact that early in the lawsuit Mitchell had been given copies of the Califor nia Highway Patrol accident report and the photographs showing the tire tracks and that Mitchell had calculated energy absorption and impact damage concerning the VW, does not mean he had analyzed the tracks or the condition of the highway as a cause of the acci dent. To the contrary, he specifically

2 Similar to current section 2034.260, subdivi sion (c)(1) and (2), former section 2037.3 then provided: “‘Each witness list shall include the name and business or residence address of each expert witness whom the pa rty expects to call in person or through deposition and a brief narrative statement of the qualific ations of such witnesses and the general subs tance of the testimony which the witness is expected to give.’” ( Kennemur, supra , 133 Cal.App.3d at p. 917, italics omitted.)10 testified at his deposition that he had not investigated that phase of the accident. Respondent was entitled to rely on Mitchell’s disclaimer un til such time as appellant
disclosed that Mitchell had conducted a furt her investigation and had reached additional opinions in a new area of inquiry.” ( Id . at pp. 919-920.) City of Fresno v. Harrison (1984) 154 Cal.App.3d 296 ( City of Fresno ), was an
eminent domain case in whic h the only issue was the value of defendants’ business goodwill. ( Id . at pp. 298-299.) Defendants complied with the requirements for designating experts under the eminent domain statutes, but plaintiff did not retain its expert until one month before trial. At his deposition, plaintiff’s e xpert had not reviewed the data or formed any opinion. ( Id . at p. 299.) At trial, defendants presented their case and then objected to plaintiff’s expert te stifying. The court suggested granting a continuance, but defendants believed the time lapse after presentation of their case would prejudice them. ( Id . at pp. 299-300.) The trial court allowed the expert to testify and the jury found defendants suffered no loss of g oodwill. After trial, defendants discovered plaintiff’s expert had relied on information the court had precl uded in a prior ruling. The trial court granted defendant’s new trial mo tion on the grounds of irregularity in the proceedings and surprise, a nd plaintiff appealed. ( Id . at p. 300.)
The court affirmed the order for a new trial, concluding: “In this case City failed to reveal that the expert was using inform ation the court had precl uded. To offer the objecting party a continuance immediately prior to trial disregards the right of the party to the trial date; to offer a break in the middle of the trial after the owner rests is even more
unfair. It affords the cond emner an undeserved opportun ity to stop and formulate a response to the owner’s case while the juror’s memories of the previous testimony dim.
It was not an abuse of discretion for the tr ial court to grant a new trial based upon the surprise.” ( City of Fresno, supra , 154 Cal.App.3d at pp. 301-302.)11 In Easterby v. Clark (2009) 171 Cal.App.4th 772 ( Easterby ), Dr. John Regan, a treating physician in a personal injury action, was deposed and stated he was not asked to form an opinion regarding causati on. Plaintiff’s attorney late r sent a letter to defendants, advising that Regan would testif y at trial that the incident in which plaintiff was injured caused the need for surgery. ( Id . at pp. 775-776.) Defenda nts did not depose Regan about that opinion. Prior to trial, defenda nts moved to exclude e xpert testimony about opinions not expressed in the experts’ depos itions. Plaintiff did not oppose and the motion was granted. ( Id . at p. 776.) At trial, Regan’ s testimony included his opinion that
the incident in issue caused the need for surgery. ( Ibid .) Defendants moved to strike all of Regan’s testimony on the ground his ca usation opinion was not disclosed in his deposition and the court had ex cluded such opinions. ( Id . at p. 777.) The trial court granted the motion, then granted defendant s’ motion for nonsuit because there was no other evidence of causation. ( Ibid .) The appellate court concluded the tria l court abused its discretion by striking Regan’s testimony. ( Easterby, supra , 171 Cal.App.4th at p. 77 8.) It acknowledged that an expert must disclose the substance of th e facts and opinion to which the expert will testify, either in the witness excha nge list or in deposition, or both. ( Ibid .) The court distinguished Kennemur and other cases: “The overarching principle in Kennemur , Jones , and Bonds [ v. Roy (1999) 20 Cal.4th 140] is clear: a party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert w ill offer the new testimony, or if notice of the new testimony comes at a time when depos ing the expert is unreasonably difficult.” ( Easterby, at p. 780, italics omitted & added.) In Easterby , in contrast, the defendants had notice of the new opinion and an opportuni ty to depose the expert again before trial to explore it, but they failed to take advantage of that opportunity. ( Ibid .)12 In Kennemur , the expert testimony pr offered at trial was about an issue the expert stated in multiple depositions that he had no opinion about and an other expert witness
would address. Grill’s test imony regarding Xiong’s use of his turn signal and Conner’s statement that he did not see a turn signa l was within the scope of the opinions Grill expressed at his deposition; in his deposition, he did not deny having an opinion on these
issues or refer the issues to another expert witness. The trial court in City of Fresno , granted a new trial because the plaintiff’s expert was unprepared and expressed no opinions during his deposition, and the trial co urt learned after the trial that the expert based his opinion on improper matter. There wa s no such occurrence in this case. In Easterby , the expert testimony offered at trial wa s not within the scope of the expert’s deposition testimony, but it was within the scop e of the issues the plaintiff subsequently notified the defendants the expert would testif y to. Grill’s trial testimony was within the scope of the facts and opinions he discussed in his deposition.
Plaintiff also asserts the evidence should have been excluded or a new trial should have been granted because Grill testified to an opinion that was beyond his area of expertise. Plaintiff contends an opinion re garding visibility of a turn signal was within the expertise of a human factors expert, not a trucking expert, and Grill was not qualified to testify as a human factors expert. Althou gh plaintiff asserts Grill was not qualified to testify regarding whether a driver could see a turn signal or not because he was not a human factors expert, and baldly states “[w] hat a driver can and cannot see is a human factors opinion,” she cites nothing in the reco rd and no legal authority in support of these
assertions. 3 Accordingly, she has not carried he r burden of demonstrating error on this
basis.

3 The appellant bears the burden of establishi ng error in the judgment. To do so, “[t]he appellant must present an adequate argument in cluding citations to supporting authorities and to relevant portions of the record.” ( Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.)13 III. Prejudice
Even if we were to find error in the admission of Gr ill’s challenged testimony, that error would not justify reversal of the ju dgment. “An evidentia ry ruling, even if erroneous, is not reversible absent a mis carriage of justice. [Citations.] ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the ev idence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appea ling party would have been reached in the
absence of the erro r.’ [Citation.]” ( Easterby, supra , 171 Cal.App.4th at p. 783.) “[A] ‘probability’ in this context does not me an more likely than not, but merely a reasonable
chance , more than an abstract possibility . [Citations.]” ( College Hospital Inc. v. Superior Court (1994) 8 Cal.4t h 704, 715.) After an examination of the evidence, we reject plaintiff’s contention that admission of Grill’s testimony was prejudicial because Conner was the only eyewitness to the accident, his testimony was favorable to plaintiff, and Grill’s testimony that Conner could not have seen whether Xiong’s turn signal was on from a quarter of a mile away “destroyed” Conner’s credibility. The tria l court concluded admission of Grill’s testimony did not prejudice plaintiff. It h eard all of the eviden ce and observed the demeanor of the witnesses as they testified. The trial court was in a better position than this court to judge the effect of the evidence on the jury. At the hearing of the motion for new trial, the trial court reviewed the eviden ce admitted at trial a nd noted it did not give much consideration to Conner’s testimony; if it had been the trier of fact, it would not have relied heavily on Conner’s testimony. The trial court observed that, in light of all the other evidence presented, Grill’s testimony wa s “a very small issue.” In light of the testimony of the Highway Patrol officer and th e two accident reconstruction experts, the
trial court could not reasonabl y conclude the verdict would have been different if Grill had not been allowed to testify.14 The evidence supports the trial court’s conc lusions. As the trial court pointed out, Conner was not the only eye witness to the co llision. Both plainti ff and Xiong testified about how the incident occurred. Xiong tes tified he was traveling at 45 miles per hour when he first saw plaintiff behind him. He applied his brakes and slowed to 25 miles per hour, then he slowed to 4 to 5 miles per ho ur before starting to turn. Xiong put on his turn signal; he checked his side mirror 2 to 10 seconds before turning the wheel. When Xiong turned his truck, plain tiff’s pickup crashed into it. Plaintiff testified she followed Xiong’s tr uck for some time, matching his speed of 45 miles per hour. The truck was traveling 35 to 40 miles per hour when she decided to pass it; she passed it at a speed of about 47 miles per hour. The truck’s left-turn signal and brake lights did not come on before she passed or while she was passing. Plaintiff denied that Xiong slowed down to 4 or 5 m iles per hour; she stated she had to accelerate to pass the truck and if he had been going 5 miles per hour, she coul d have passed him in
a second. She testified she was in the passing lane 15 seconds. Plaintiff’s accident reconstruction expe rt based his opinion on Conner’s deposition testimony and his own assumptio ns and calculations. He took into consideration Conner’s testimony plaintiff’s pickup was in the westbound lane one to several seconds
before the truck started its left turn. He ca lculated plaintiff’s pic kup was traveling 45 to 55 miles per hour at impact, accepted Xiong’s testimony he was trave ling 4 to 5 miles per hour before he began his turn , and opined plainti ff’s pickup would have been visible in Xiong’s mirror for 3 to 5 seconds before the point of impact.
Defendants’ accident recons truction expert conc luded Xiong’s speed at the time of impact was about 5 miles per hour and plaintiff’s was 40 to 50 miles per hour. He relied on Conner’s testimony in many of his opinions . He concluded the pickup and the truck initiated their movements (left turn and passi ng maneuver) within a second or two of each other, and there was no way to say which oc curred first. If plaintiff began her passing15 movement first, it was no more than a sec ond before Xiong bega n his turn and he couldn’t say with any degree of engineering certainty whether plai ntiff’s pickup would have been visible in Xiong’s mi rror for even that second. Plaintiff contends Grill’s testimony that Conner could not have seen whether Xiong’s turn signal was activated from a qua rter of a mile away destroyed Conner’s credibility, regarding both the turn signal not being on an d the two vehicles being side by
side before the collision. Grill’s testim ony, however, did not contradict Conner’s testimony that he did not see a signal on th e truck before it atte mpted to turn. Grill proposed an alternative explanation why Conne r did not see a signal on the truck that was consistent with Xiong’s testimony that he ac tivated his signal before he turned. Grill’s testimony did not, as plainti ff asserts, suggest that Conner was a liar or destroy his credibility. It did not in any way disparage Conner’s testimony that the vehicles were side by side before the collis ion, especially in light of the fact both accident reconstruction experts relied heavily on that testimony in reaching th eir conclusions. The evidence supports the trial court’s conclu sion it was not reasonably probable a result more favorable to plaintiff would have been reached if Grill’s testimony had been
excluded. Neither admission of the testimony nor denial of plaintiff’s new trial motion
was an abuse of discretion.
DISPOSITION The judgment is affirmed. Defendant s are entitled to their costs on appeal.