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The Court of Appeals of California reviewed a case in Second District, Division One. The case involved Heidi Gonggryp as the plaintiff and BMW of North America LLC as the defendants. Gonggryp filed a suit against the manufacturer (BMW AG) and distributor (BMW of North America LLC) of her automobile for injuries she sustained from a defective seatbelt. Before the trial began, the trial court decided that Dr. Daniel Lu, Gonggryp’s neurosurgeon and a retained expert, could not testify that her vehicle’s seatbelt was defective and the cause of her injuries. The court also did not permit Lu to offer any opinions based on biomechanics or occupant kinematics.

During the trial, the jury made a unanimous verdict that the seatbelt was not defective. Gonggryp moved for a new trial on the basis that the trial court was wrong in limiting Lu’s opinions. The trial court denied this motion, and BMW moved to recover its costs of almost $400,000. Gonggryp moved to tax these costs by disputing that BMW’s settlement offer was a token offer, but the trial court denied her motion to tax.

On appeal, Gonggryp disputes that the trial court abused its discretion about the limitation it put on Lu’s expert testimony and on its decision to deny her tax motion. The appeals court is not persuaded by these motions, and they affirm the judgment.

On July 29, 2009, Gonggryp was driving to work when another car collided with the left front of her vehicle, a 1999 BMW 323i. As the cars hit each other, Gonggryp slammed forward and allegedly hit her head on the steering wheel. She was wearing her seatbelt at the time. Gonggryp’s sister took her to the emergency room, where she complained of neck and lower back pains and a possible head injury. Over the next two years, she was constantly “in a lot of pain” and suffered from “memory lapses.”

On January 3, 2011, Gonggrup sued BMW for negligence, failure to warn, design and manufacturing defect, and “breach of express and implied warranties.” BMW denied these allegations. In May 2012, the parties tried to settle the dispute through mediation, but it was unsuccessful. In July of the same year, BMW offered to settle the case for $20,000 and a cost waiver. Gonggryp denied this offer.

In January 2015, Gonggryp served BMW with her expert witness designations, including Lu. Lu was designated to testify on Gonggryp’s cervical disk injuries, causation, damages and treatment. Lu had previously operated on Gonggryp in 2011 and performed a discectomy and fusion. Lu offered causation opinions in March 2015, where he stated that Gonggryp’s spine injury wasn’t the result of degenerative changes, but of trauma from the accident, and that the trauma was caused by the seatbelt.

BMW moved to not include Lu’s two opinions of causation, based on the opinion that they were not “substantial medical evidence” and that the basis of his opinion was “an insufficient foundation” for his opinion. In opposition, Gonggryp attempted to stress the significance of Lu’s experience. On June 8, 2016, the trial court granted BMW’s motion, but partly. On the causation-related problems, the trial court permitted Lu to testify involving other patients with similar injuries that he personally treated, but did not allow him to testify that the seatbelt caused Gonggryp’s injuries or offer any opinions about the function and design of the vehicle.

As a conclusion at the end of the hearing, the trial court found that Lu could indeed testify about Gonggryp’s medical treatment about her possible head injury, but that he could not give an opinion that her injuries were caused only by hitting her head.

On June 21, 2016, the jury returned its verdict and unanimously found that the seatbelt in Gonggryp’s car was not defective. On the 25th, the trial court entered judgment in favor of BMW. In August 2016, Gonggryp moved for a new trial on the grounds that the exclusion of Lu’s testimony was wrong. In September, the trial court denied Gonggryp’s motion.

On July 28, 2016, BMW filed a cost memorandum to recover $389,677.89, with expert witness fees made up of $332,491.65. Gonggryp filed a motion to tax the company’s costs by disputing that BMW’s recovery of expert witness fees was unwarranted. This was on the argument basis that the settlement offer ($20,000 plus a waiver of costs) was a token offer not made in good faith. In December, the trial court amended the judgment in favor of BMW and awarded it $389,677.89. Gonggryp appealed.

The trial court had correctly excluded Lu’s opinions of causation because “there was too great of an analytical gap between the data upon which Lu relied and the opinions he sought to offer to the jury.” In conclusion, Gonggryp had overall failed to prove to the trial court, with all of the evidence presented, acted in an arbitrary or absurd manner when it denied her motion to tax.

The judgment is affirmed, and BMW is awarded its costs on appeal.

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