Unreported / Non-Citable
Background
Tony and Corina Falbo sued William Parisi for wrongful death after his commercial dump truck struck and killed their 20-year-old daughter, Sidney, while she was riding her bicycle in Santa Rosa. Parisi had exited a highway, waited at a light, and then turned right onto Stony Point Road. The collision occurred in the east-west crosswalk. The central circumstances were disputed, including Sidney's position and direction, whether she stopped before crossing, and how Parisi scanned for hazards before and during his turn.
The liability trial lasted almost four weeks, not including voir dire and jury selection. Seven witnesses testified regarding liability: four percipient witnesses—Parisi, John Fortunati, Belinda Fortunati, and Gloria Hernandez—and three expert or investigator witnesses—Officer Ken Ferrigno, Dr. Eric Rossetter, and Michael Ashley. The only eyewitness to the collision, Hernandez, gave testimony that, construed in the light most favorable to the judgment, indicated Parisi had already begun to turn when Sidney entered the intersection. Rossetter offered stopped and no-stop scenarios and opined that Parisi could not have avoided hitting her in either. The Falbos' trucking-safety expert addressed blind spots and the need for a driver to rock his body to see around them. The jury deliberated about three-and-a-half hours and found Parisi was not negligent, so it did not reach causation or comparative negligence.
The Court’s Holding
Reviewing for abuse of discretion, the court held that Rossetter's testimony satisfied Sargon's gatekeeping requirements. He relied on scene documentation, laser scans, physical evidence, witness accounts, measurements, scientific literature, and industry-used modeling programs. His inability to choose between the two scenarios did not make his ultimate opinion speculative: his ultimate opinion was that the accident happened in only one of two ways, neither more likely than the other, and in neither could Parisi avoid the collision. The court distinguished Waller because Rossetter was not opining on one of an infinite number of possible scenarios, and because Rossetter was a defense expert while Waller involved a plaintiff's expert bearing the burden of proof.
The court also found an adequate foundation for both scenarios. Hernandez's testimony about Sidney's orientation was qualified and open to different inferences, while the weaker no-stop scenario still had slight circumstantial support from Parisi, Fortunati, and timing and distance calculations. Any conflict with eyewitness evidence concerned weight, not automatic admissibility. The animations were demonstrative aids that accurately illustrated Rossetter's opinions; the buttonhook objection was invited error after the Falbos successfully blocked that inquiry, and the animations were not unduly prejudicial because they were all 11 seconds or less and did not depict the truck actually running over the bicyclist, Sidney's body, or the collision's aftermath.
The substantial-evidence challenge failed because the briefing was inadequate: it did not address Rossetter's testimony, did not analyze the jury instructions, did not demonstrate that the evidence compelled a finding in the Falbos' favor as a matter of law, and did not show that the jury was compelled to accept Ashley's expert testimony or the factual predicate for his opinions. The court separately lacked jurisdiction over the August 28, 2024 award of $118,533.67 in expert witness fees because the notice of appeal was invalid: it was filed before the trial court announced its intended decision on costs, making it invalid under Spears v. Spears (2023) 97 Cal.App.5th 1294, 1299-1300 and Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691. The court did not need to decide whether Fish v. Guevara was correctly decided because Grant was inapplicable regardless: the judgment did not award costs or provide for a later determination of their amount. The judgment was affirmed and Parisi awarded appellate costs.
Key Takeaways
- Alternative reconstruction scenarios are not automatically speculative when an expert supplies a reasonable foundation and a useful ultimate opinion about the possibilities.
- Conflicts between a supported expert opinion and eyewitness testimony generally present questions of weight for the jury rather than categorical exclusion.
- A computer animation illustrating expert testimony need not establish the underlying events with indisputable accuracy, but must accurately represent the expert's opinion.
- An appellant challenging a failure of proof must address the admitted evidence, the jury instructions, and the demanding standard for a finding compelled as a matter of law.
- A postjudgment section 998 expert-fee order ordinarily requires its own timely appeal when the judgment neither awards costs nor reserves a later amount determination; a notice filed before the trial court announces its intended decision is invalid.
Why It Matters
The opinion applies Sargon without turning gatekeeping into a requirement that reconstruction experts eliminate every analytical gap or reconcile all competing testimony. It also ties the admissibility of demonstrative animations to the opinions they illustrate and enforces invited-error and prejudice principles.
Its jurisdictional holding is separately important for civil practice: broad notice language referring to future costs decisions does not replace a timely appeal from a later order, particularly where the original judgment is silent on costs. The court affirmed the merits judgment while leaving the expert-fee award unreviewed, not deciding its validity or amount.