Pedraza v. Silverman
Filed 6/13/13 Pedraza v. Silverman CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
GEORGETTE PEDRAZA et al.,
Plaintiffs and Appellants,
v.
MICHAEL SILVERMAN et al.,
Defendants and Respondents.
D059638
(Super. Ct. No. 37-2008-00081565-
CU-MM-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Judith F. Hayes, Judge. Affirmed.
Hayworth
and Sussman and Nancy Sussman for Plaintiffs and Appellants.
Carroll,
Kelly, Trotter, Franzen & McKenna, Richard D. Carroll, Lisa M. Iulianelli
and David P. Pruett for Defendants and Respondents.
This
arises out of a robotically assisted laparoscopic surgery performed by Michael
Silverman, M.D., on Georgette Pedraza.
After an eight-day trial, the jury found in favor of Dr. Silverman; his
colleague, Sheryl Saenz, M.D.; and their employer, the Regents of the University
of California (Regents)
(collectively defendants). On appeal,
Georgette Pedraza and her husband, Luis Pedraza, (together, the Pedrazas)
assert the court erred by (1) striking their statement of disqualification of
the trial judge; (2) granting Dr. Silverman's motion in limine to exclude a
statement of deficiency issued by the California Department of Health Services
(DHS or Department); (3) making improper rulings during the trial testimony of
both parties' expert witnesses; (4) denying their
failing to adequately admonish the jury concerning documents not entered into
evidence; (5) making certain rulings during jury selection; and (6) granting
the Regents' motion for nonsuit. We
affirm.
FACTUAL
AND PROCEDURAL SUMMARY
On July 19, 2007, Georgette Pedraza
underwent a robotically assisted laparoscopic surgery at the University
of California, San Diego (UCSD) Medical
Center, which is owned and operated
by the Regents. The surgery was
performed by Dr. Silverman to remove a large mass near Mrs. Pedraza's left
fallopian tube and ovary and to confirm the mass was benign. Prior to performing the procedure, Dr.
Silverman estimated he had done 15 robotically assisted laparoscopic surgeries
and hundreds of laparoscopic surgeries.
During the procedure, Dr. Silverman removed the large mass and confirmed
it was endometriosis, not cancer. While
operating, a portion of the scalpel dislodged and fell into Mrs. Pedraza's
abdomen. The surgery lasted more than
six hours, including one hour to retrieve the dislodged portion of the
instrument.
With no
complications, Mrs. Pedraza was expected to go home the day following
surgery. Late the night of the surgery,
however, she developed a fever that continued into the next morning. A chest X-ray revealed pneumonia, and she was
treated with antibiotics. When Dr.
Silverman saw Mrs. Pedraza at 3:00 p.m.
the day after surgery, her condition had improved and her fever was gone. Dr. Silverman left the hospital later that
afternoon, a Friday, and turned Mrs. Pedraza's primary care over to Dr. Saenz,
the on-call attending physician for the weekend. Friday evening, Dr. Saenz was alerted by a
medical resident that Mrs. Pedraza's fever had returned and her overall
condition had deteriorated. Dr. Saenz
requested a number of tests, which confirmed the earlier diagnosis of
pneumonia, but were inconclusive as to additional causes of Mrs. Pedraza's
illness.
Mrs.
Pedraza's condition improved during the day on Saturday, but that evening
significantly and suddenly worsened. Her
oxygen saturation level dropped and her heart rate and rhythm became
abnormal. As a result, Mrs. Pedraza was
transferred to the intensive care unit and diagnosed with septic shock. The source of the infection causing sepsis,
however, was not clear. Additional tests
were inconclusive. Dr. Silverman
returned to the hospital early Sunday evening.
He accompanied Mrs. Pedraza to radiology for additional tests and
ascertained for the first time there was a perforation in Mrs. Pedraza's colon
causing the serious infection that now threatened her life.
Once he
discovered the perforation, Dr. Silverman discussed the situation with Mrs.
Pedraza's family and obtained their consent to operate. He performed an emergency laparotomy (or open
surgery) to repair the perforation late Sunday evening. Because of damage to the bowel, Dr.
Silverman created a colostomy, which was reversed a year later. After this second surgery, Mrs. Pedraza
remained in the hospital for 32 days.
Once home, she was visited by a nurse every other day who assisted with
managing the surgical wound and with the care of the colostomy. Before the reversal of the colostomy, Mrs.
Pedraza was hospitalized a number of times for bowel obstruction.
In April
2008 the Pedrazas sued for medical malpractice and loss of consortium. The case was brought to trial in February
2011. The trial focused on whether
defendants' conduct (preoperatively in recommending the robotically assisted
laparoscopic procedure, Dr. Silverman's actions during the procedure, and
postoperatively in diagnosing and treating the perforation) fell below the
standard of care, and the timing of the perforation of the bowel. The Pedrazas introduced the expert testimony
of Arnold Zeiderman, M.D., an experienced gynocological surgeon, who opined the
perforation occurred at the time of Mrs. Pedraza's initial surgery and Dr.
Silverman and Dr. Saenz breached the applicable standards of care. Defendants presented the expert testimony of
Lynn Kowalski, M.D., an experienced gynecologic oncologist, who opined
defendants did not breach the standard of care, and Brian West, M.D., a
pathologist, who opined on the timing and causation of the bowel perforation.
DISCUSSION
I. STATEMENT
OF DISQUALIFICATION
The
Pedrazas first argue the court committed reversible error by striking their
statement of disqualification against Judge Judith F. Hayes. At the initial trial call in October 2010,
after argument and rulings on 10 motions in limine, the Pedrazas' counsel,
Nancy Sussman, questioned the judge about her relationship with Dr. Saenz: "The Court disclosed in the beginning
that she had surgery by Dr. Saenz, one surgery.
[¶] . . . [¶] And never saw since, never saw after,
saw her on one occasion only. I just
want to make sure that's still the case." Judge Hayes responded that was correct and her
best recollection was that she met Dr. Saenz once for about 10 minutes. She also stated she "still get[s]
medical care at UCSD." Sussman
responded she was not aware the judge's current health care provider was the
Regents and challenged the judge for cause.
The court indicated it did not believe recusal was appropriate,
postponed the matter, and directed Sussman to prepare a formal statement of
disqualification. The Pedrazas filed the
statement the following day.
On November 9, 2010, the court issued
its order striking the statement of disqualification as untimely under Code of
Civil Procedure section 170.4, subdivision (b).
In its order the court noted Judge Hayes disclosed she was receiving healthcare
through the Regents on December 4,
2008, near the outset of the case.
As a
preliminary matter, the Pedrazas' claim is not cognizable on appeal. "As set forth in Code of Civil Procedure
section 170.3, subdivision (d): 'The
determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate from the
appropriate court of appeal sought within 10 days of notice to the parties of
the decision and only by the parties to the proceeding.' " (People
v. Panah (2005) 35 Cal.4th 395, 444.)
"Code of Civil Procedure section 170.3, subdivision (d) provides
the exclusive means for seeking review of a ruling on a challenge to a judge,
whether the challenge is for cause or peremptory." (Panah,
at p. 444.) The order indicates on
its face it "constitutes a determination of the question of
disqualification pursuant to Code of Civil Procedure, section 170.3[,
subdivision] (d)" and the Pedrazas failed to file a writ of mandate within
the prescribed period of time. This
court, therefore, is without jurisdiction to review the order.
We also
note, as the trial court found, the Pedrazas' statement was untimely. Code of Civil Procedure section 170.3,
subdivision (c)(1) provides "[i]f a judge who should disqualify himself or
herself refuses or fails to do so, any party may file with the clerk a written
verified statement objecting to the hearing or trial before the
judge . . . . The
statement shall be presented at the
earliest practicable opportunity after disclosure of the facts constituting the
ground for disqualification."
(Italics added; see also Tri
Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337
["This strict promptness requirement is not to be taken lightly, as a
failure to comply constitutes forfeiture or an implied waiver of the
disqualification."].)
Judge Hayes
disclosed she received health care from the Regents nearly two years before the
Pedrazas filed their statement of disqualification. No new information concerning her relationship
with defendants was disclosed during trial call and the Pedrazas presented no
explanation for their delay.
name="_ftnref2" title="">[2] Accordingly, the challenge was untimely and
the court did not err by striking the statement of disqualification.
II. EVIDENTIARY
RULINGS
The
Pedrazas contend the trial court committed reversible error with respect to
several evidentiary rulings before and during trial. They argue the court erred by (1) granting
defendants' motion in limine to exclude a deficiency citation issued by the DHS,
(2) precluding additional examination of a defense expert, and (3) limiting the
testimony of their expert.
"The
trial court is 'vested with broad discretion in ruling on the admissibility of
evidence.' [Citation.] '[T]he court's ruling will be upset only if
there is a clear showing of an abuse of discretion.' [Citation.] '
"The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason.
When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the
trial court." [Citation.]' [Citation.]
Moreover, even where evidence is improperly excluded, the error is not
reversible unless ' "it is reasonably probable a result more favorable to
the appellant would have been reached absent the error." ' " (Tudor
Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422,
1431-1432.)
A.
Defendants
brought a motion in limine to exclude a citation, or "statement of
deficiency," issued by the DHS. The
citation details an investigation by the DHS that was conducted after Sussman
reported Mrs. Pedraza's surgery to the Department. The investigative report, dated April 2008,
concludes "the hospital failed to ensure its policy and procedure relative
to the documentation of clinical privileges and proctoring requirement for
physicians who were granted surgical privileges for robotically assisted
surgical procedures [were] implemented."
Defendants
argued the citation was irrelevant under Evidence Code section 350 and also
should be excluded under Evidence Code section 352 because it created a
"substantial danger of misleading the jury into equating regulatory
'deficiencies' . . . to a 'breach' of the standard of
care . . . ."
Defendants explained that at the time of Mrs. Predraza's surgery the
hospital did not have a distinct delineation of privilege (DOP or proctoring
requirement) for the use of the robotic system.
Instead, surgeons with advanced laparoscopic experience and evidence of
training with the system were permitted to use the device. The "Provider's Plan of Correction"
contained in the citation states the hospital began implementation of a separate
DOP for the robotic system in September 2007 and expected it to be finalized in
April 2008.
In
response, the Pedrazas argued the DHS citation was relevant to the alleged
corporate negligence of the Regents because it showed the hospital's failure to
require proctoring fell below the applicable standard of care. The Pedrazas also pointed to the statement of
Dr. Silverman in the citation that in the past "he had experienced failure
of the anvil attachment twice during a laparoscopic surgery." They argued this statement was relevant to
the standard of care, a lack of informed consent, and Dr. Silverman's
credibility because his deposition testimony was that the anvil had broken just
once before the equipment failure in Mrs. Pedraza's surgery.
The trial
court excluded the citation, finding its probative value was substantially
outweighed by its likelihood of confusing the jury. The court noted the DHS had access to
information not available to the parties and that the significance of the
citation and the precise deficiency found by the DHS was unclear. The court also specifically stated, "You
can't take a rule that was put in place after a problem occurred and then say
there they were cited for violating the rule when the problem occurred. That doesn't make any sense." The court concluded the introduction of the
citation would result in a time-consuming trial of a regulatory deficiency case
"in the middle of a malpractice case."
Evidence
Code section 352 gives the trial court discretion to "exclude evidence if
its probative value is substantially outweighed by the probability its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury." The statute
" 'requires consideration of the relationship between the evidence and the
relevant inferences to be drawn from it, whether the evidence is relevant to
the main or only a collateral issue, and the necessity of the evidence to the
proponent's case as well as the reasons recited in [Evidence Code] section 352
for exclusion. [Citation.] The more substantial the probative value of
the evidence, the greater the danger of the presence of one of the excluding
factors that must be present to support an exercise of trial court discretion
excluding the evidence.' " (
(1990) 218 Cal.App.3d 1110, 1123-1124.)
"A trial court's discretionary ruling under this statute '
"must not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice." ' " (People
v. Williams (2008) 43 Cal.4th 584, 634-635.)
There was
no abuse of discretion here. The
probative value of the DHS citation was limited by inconsistency within the
document itself. Without reference to a
particular time frame, the citation states generally that the "hospital
failed to ensure its policy and procedure relative to the documentation of
clinical privileges and proctoring requirement for physicians who were granted
surgical privileges for robotically assisted surgical procedures [were]
implemented." The hospital's
response within the document, however, states there was no specific proctoring
or related documentation requirement in place at the time of Mrs. Pedraza's
surgery. In addition, the citation was
not the only evidence available to show the hospital did not have a specific
proctoring requirement at the time of the incident and that Dr. Silverman had
not been proctored, or to show Dr. Silverman had previously experienced failure
of the anvil attachment. In fact,
testimony concerning these facts was heard by the jury. Dr. Silverman testified concerning the prior
equipment failure.
title="">[3] Indeed, it was not disputed that Dr.
Silverman was not proctored with respect to the robotic procedure or that the
hospital did not have such a proctoring requirement. Both the Pedrazas' expert and Dr. Silverman
testified he was not proctored before Mrs. Pedraza's surgery. Importantly, exclusion of the citation did
not foreclose the Pedrazas from introducing evidence concerning whether the
applicable standard of care required proctoring.
On the
other side of the scale, the citation's internal inconsistency had a strong
probability of creating confusion in the minds of the jurors. As the court found, it was likely
introduction of the citation would result in a time-consuming and confusing
"trial within a trial" on the collateral issue of whether the hospital
was actually deficient in its regulatory compliance. (See People
v. Hamilton (2009) 45 Cal.4th 863, 930 [evidence with limited probative
value properly excluded under Evidence Code section 352 where presentation
would result in time-consuming "mini-trial" on the evidence]) The trial court properly conducted the
applicable balancing test with respect to the citation and its decision to
exclude the evidence was not "arbitrary, capricious or patently
absurd." (People v. Williams, supra,
43 Cal.4th at p. 634.)
B.
The
Pedrazas argue that the trial court erred by allowing defense expert Dr. West
to testify beyond the scope of his deposition and by precluding additional
cross-examination of him. Neither
contention is supported by the record.
1.
During
trial, defense counsel, Richard Carroll, informed Sussman he intended to call
Dr. West, a pathologist retained by defendants and deposed by Sussman. Although
designated on the trial witness list, Carroll previously stated Dr. West would
not be called as a witness. However,
after Dr. Zeiderman testified he had relied on the deposition testimony of Dr.
West concerning the cause of the perforation to Mrs. Pedraza's bowel in forming
his own opinions, Carroll decided to call Dr. West to refute that testimony. The Pedrazas did not object to Dr. West
taking the stand and Sussman agreed a total of two hours for his testimony was
sufficient. Dr. West arranged to come
to San Diego from Connecticut to testify and then to leave San Diego the same
day as his testimony in order to meet an existing obligation the following day
in Texas. In order to make his flight,
Dr. West needed to leave the court by 11:20 a.m.
During his
testimony, Dr. West opined, over Sussman's objections, it was likely an
"injury happened during the surgery but [the colon] didn't perforate until
sometime thereafter." He noted this
is a "relatively common circumstance . . . with
colonic injuries." Dr. West went on
to testify the most probable scenario was that "the colon was damaged
during the process of dissecting away the . . . adhesions
which was done by electrocautery, and that caused damage to the colon wall,
which weakened it, but didn't cause a perforation at that time. And that at
some stage later on when perhaps there was an increase in the pressure within
the . . . colon . . . the perforation
occurred." Dr. West further
explained that if the bowel is injured, "when one attempts to have a bowel
movement that increases the [] pressure within the bowel and actually causes a
rupture to occur in an area that's been weakened."
At the
conclusion of the trial day, the Pedrazas moved for a mistrial, arguing this
testimony should have been excluded under Code of Civil Procedure section
2034.300 because Dr. West did not mention a "bowel movement" at his
deposition. Citing Kennemur v. State of California (1982) 133 Cal.App.3d 907, the
Pedrazas argued Sussman's objections to this testimony should have been
sustained because the opinions were not expressed by Dr. West at his
deposition. When the
defendants responded by pointing to Dr. West's deposition testimony in which he
was asked: "With respect to a
patient with peritonitis as a result of an acute bowel injury will you expect
such patient to be up and walking around in the immediate aftermath of a bowel
injury?" Dr. West responded,
"Patients with acute peritonitis from bowel damage or disruption get very
severe abdominal pain and are usually very sick in a very short time." Dr. West also testified during his deposition
that he had seen "hundreds of cases of peritonitis due to injuries in the
large and small intestines over the years, literally hundreds." Additionally, his deposition testimony
included his opinion that it was extremely unlikely the portion of the
instrument that broke off caused the perforation to Mrs. Pedraza's bowel during
surgery.
The trial
court denied the Pedrazas' motion for mistrial, finding the new statements were
within the scope of Dr. West's deposition testimony. The court pointed to Dr.
Zeiderman's testimony that he "derive[d] from Dr. West's opinion
that . . . the surgery contributed to the
perforation."
"[A]n
expert may be precluded from testifying at trial on a subject that was not
described in his expert witness declaration." (DePalma
v. Rodriguez (2007) 151 Cal.App.4th 159, 164). Further, where an expert testifies at his
deposition that he has no opinions other than those offered, the expert may be
barred from expressing additional opinions at trial. (Jones
v. Moore (2000) 80 Cal.App.4th 557, 564-566.) Such testimony is properly excluded under
Code of Civil Procedure section 2034.300 because, in effect, the expert is not
made available for deposition as to the additional opinions offered at trial.
the expert's trial testimony merely expands the conclusions stated in his
deposition. (DePalma v. Rodriguez, supra, 151 Cal.App.4th at pp. 164-165.)
The trial
court's decision to allow Dr. West to express his opinion concerning the timing
of the perforation of Mrs. Pedraza's bowel was not an abuse of discretion. The deposition
testimony of Dr. West proffered by defendants in response to the Pedrazas'
deposition testimony referenced by Dr. Zeiderman, directly concerned whether
the perforation was made during surgery or occurred sometime after. The opinion expressed by Dr. West during
trial that the perforation did not occur during surgery was not outside the
scope of his deposition, nor did it unfairly surprise the Pedrazas.
Dr. West's
opinion that increased pressure, or peristalsis, in the colon caused or
contributed to the actual perforation also fell within the general scope of his
deposition testimony. As noted, at his
deposition Dr. West stated his opinion that it was likely that Mrs. Pedraza's
bowel was weakened by the trauma of surgery, but that the actual perforation
leading to septic shock occurred sometime after surgery. Even if Dr. West did not state specifically
during his deposition that pressure in the bowel, or a "bowel
movement," was a contributing cause of the actual perforation, this
conclusion was part and parcel of his opinion concerning the causation and
timing of the perforation. As evidenced
by Dr. Zeiderman's testimony, from Dr. West's deposition the Pedrazas were
aware that Dr. West held the opinion that the colon was injured, but not
perforated, during the surgery. Dr.
West's later testimony that peristalsis was another contributing factor to the
perforation was simply a facet of his opinion as to how the perforation
occured. (See DePalma v. Rodriguez, supra, 151 Cal.App.4th at p. 165 [not error
to allow expert's testimony where it "constituted merely an expanded
description and interpretation of the conclusions stated in his deposition
testimony"].)
title="">[5]
2.
The
Pedrazas also contend the court improperly limited their examination of Dr.
West. As noted above, the Pedrazas'
counsel agreed at the outset two hours was sufficient for Dr. West's testimony. In order to allow for a morning break during
the session, the court indicated each side would have 50 minutes to examine Dr.
West. The court warned a showing of good
cause would be required for either side to obtain additional time for further
questioning. At the conclusion of the
trial day, after Dr. West left for Texas and the court's denial of the
Pedrazas' motion for mistrial, Sussman stated she had additional areas of
examination she wanted to cover with Dr. West.
The court reminded Sussman a showing of good cause would be required for
further examination and asked what additional areas she wanted to cover with
Dr. West.
Sussman
pointed to just one question and answer from Dr. West's deposition that she
wanted to ask and follow up on: Whether
a patient with peritonitis would be able to pass fecal material, to which Dr.
West responded it was a clinical area he was not in a good position to answer
as a pathologist. The trial court did
not issue a ruling, indicating it believed Sussman had pursued this line of
questioning, but wanted to review the transcript before making a decision. The Pedrazas did not raise the issue again at
trial and the court never issued a ruling. The transcript shows, however, Sussman
did question Dr. West concerning whether, during his deposition, he had
testified about a bowel movement.
"Generally,
'the trial court has the power to rule on the admissibility of evidence,
exclude proffered evidence that is deemed to be irrelevant, prejudicial or
cumulative and expedite proceedings which, in the court's view, are dragging on
too long without significantly aiding the trier of fact.' [Citation.]
Nonetheless, in exercising this power, the trial court may not infringe
the parties' 'fundamental right to a full and fair hearing.' " (Hernandez
v. Kieferle (2011) 200 Cal.App.4th 419, 438.) With respect to the limitation imposed on Dr.
West's testimony, the trial court acted within its discretion to enforce the
parties' time estimates. When the court
requested the Pedrazas proffer areas of inquiry that required further
examination, the one line of questioning raised was an area that was already
covered. There was no prejudicial error
in the trial court's determination to allow Dr. West to leave.
C.
The
Pedrazas next argue they were improperly restricted from presenting testimony
from Dr. Zeiderman concerning (1) the use of a robot to perform laparoscopic
surgery and (2) Dr. West's opinions concerning the pathology of Mrs. Pedraza's
injury. These arguments are without
merit.
1.
With
respect to the court's limitation of Dr. Zeiderman's testimony about robotic
surgery, the Pedrazas point to a series of three questions where the court
sustained defendants' objections precluding Dr. Zeiderman from answering: "One of the drawbacks of using robotic
surgery is that you don't feel how much tension or how much pressure your
instrument is making on the organ in which it's directed, correct?";
"Is there a danger in using instruments during the robotic
surgery . . . .?"; and "Using the laparoscopic
surgery . . . , is it the same risk as the robotic
surgery?"
Although
Dr. Zeiderman had not done a robotic procedure (6 RT 968:18)!, it was not
disputed he was a qualified medical expert and had reviewed medical literature
concerning this laparoscopic technique.
Sustaining these objections, therefore, was arguably error. (See Brown
v. Colm (1974) 11 Cal.3d 639, 644 ["[T]here is no question that a
professional physician may rely upon medical texts as the basis for his
testimony."]) However, we see no
prejudice to the Pedrazas in the court's rulings. Immediately after sustaining the objections,
the court reversed itself and permitted Dr. Zeiderman to respond to the same
inquiry: "Q. Is there a risk in the
laparoscopic surgery in breaking instruments because you don't—you're not able
to feel the pressure of the instrument on the organ? [¶] A. That's one of the—one of the problems
with working with these instruments, particularly the robot, because the instrument
is not in your hand."
2.
The
Pedrazas argue it was prejudicial error for the court to preclude Dr. Zeiderman
from testifying concerning "pathology reports from the Regents, which in
turn relate to the material issue of the cause of the [Mrs. Pedraza's]
injuries." This argument is also
not supported by the record. During
direct examination of Dr. Zeiderman, Sussman attempted to elicit testimony
concerning an error in the pathology report prepared by UCSD that Dr. West
pointed out during his deposition. The
court sustained defendants' hearsay objections to this testimony.
Expert
witnesses are "entitled to rely upon reasonable hearsay" (
304, 307), and Dr. Zeiderman's use of Dr. West's deposition testimony as a
basis for his opinions was not inappropriate.
(Evid. Code, § 801, subd. (b).)
"On direct examination, the expert witness may state the reasons
for his or her opinion, and testify that reports prepared by other experts were
a basis for that opinion." (
on direct examination, reveal the content of reports prepared or opinions
expressed by nontestifying experts. '
" 'The reason for this is obvious.
The opportunity of cross-examining the other doctors as to the basis for
their opinion, etc., is denied the party as to whom the testimony is adverse.'
" ' " (Ibid.)
The record
does not support the Pedrazas' contention that the court improperly limited Dr.
Zeiderman's testimony with respect to Dr. West's opinions. Dr. Zeiderman was not generally precluded
from testifying concerning the UCSD pathology report. Instead, the court properly precluded Dr.
Zedierman from revealing hearsay opinions about the report expressed by Dr.
West during his deposition.
name="_ftnref7" title="">[7]
III. HOSPITAL
RECORDS NOT ENTERED INTO EVIDENCE
Next, the
Pedrazas contend a mistrial, or at minimum a curative admonition, was necessary
after defense counsel held records in front of the jury purportedly from the
hospital where Dr. Zeiderman practiced.
Again, the record does not support this contention.
During his
cross-examination, Carroll questioned Dr. Zeiderman about his surgical
experience. Carroll specifically
asked: "[S]o lawyers like me that
want to know the number of surgeries that doctors like you do really do from,
let's say, 2004 to 2011, we can just subpoena the business records department
of the hospital, and they take statistics on doctors like you as to how many
surgeries you really do, right?"
Dr. Zeiderman responded: "I know
you've been trying to find out how many cases I've done. You might have just asked me. [¶] . . . [¶] I would
have been happy to show you my records[;] I keep them." Carroll then asked if it was correct that
since 2004 Dr. Zeiderman had performed 32 procedures as the primary surgeon and
had assisted in 108 procedures. Dr.
Zeiderman disagreed with those numbers, stating he believed they were too
low. During this line of questioning the
court reminded the jury that "the attorneys' questions aren't evidence. They're important only as they enable you to
understand the answer."
After
moving on to other areas of inquiry, Carroll returned to Dr. Zeiderman's
experience: "[B]y the way, I
promised you, doctor, that I would show you records from the actual hospital
where you do most of your work. So I'm
going to do that now." While the
court reporter marked the exhibit, Sussman objected on the grounds of
authenticity and stated she had never seen the document before. The court ordered Carroll to give Sussman the
opportunity to review the documents before using them. Carroll conceded, stating, "Fair
enough. I'll wait until the break. [¶] . . . [¶] . . . and
we'll go back to those documents."
At the next break in the proceedings, Sussman objected again, but the
court declined to address the issue.
Carroll never returned to the document and it was not entered into
evidence.
Sussman
raised her objection again the next morning and moved for a mistrial.
"[T]he records were not received into evidence. Anything that's shown to a witness has to be
marked. That's all that happened
yesterday. I suggested to you that there
is a jury instruction that deals with that.
That's available to you."
The following day, the court stated it would permit the Pedrazas
"to submit for consideration a jury instruction relating to the
document." The Pedrazas did not
seek the suggested jury instruction.
"A
trial court should grant a mistrial only when a party's chances of receiving a
fair trial have been irreparably damaged, and we use the deferential abuse of
discretion standard to review a trial court ruling denying a
mistrial." (People v. Bolden (2002) 29 Cal.4th 515, 555.) " 'Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial motions.'
" (People v. Williams (2006) 40 Cal.4th 287, 323.)
The court
did not abuse its discretion by denying the Pedrazas' motion for mistrial. Defense counsel's line of questioning
concerning Dr. Zeiderman's experience in the procedures he was opining on was
appropriate. (Evid. Code, § 721, subd.
(a); see also Grimshaw v. Ford Motor Co.
(1981) 119 Cal.App.3d 757, 796 ["It is well established that wide latitude
should be allowed in cross-examining experts on their qualifications and on the
reasons given for the opinions expressed."].) Further, the document that is the subject of
the Pedrazas' complaint was never introduced into evidence or seen by the
jury. The mere statement by Carroll that
he was going to show Dr. Zeiderman the document did not by itself show Dr.
Zeiderman had overstated his experience.
The
Pedrazas also complain they were ambushed.
They argue had the document been provided to them before Dr. Zeiderman's
testimony, he could have explained any discrepancy. As noted, however, the document was never
directly used to impeach Dr. Zeiderman.
Further, the Pedrazas were
provided with an opportunity to review the document and to rehabilitate Dr.
Zeiderman on redirect examination. The
court also specifically invited the Pedrazas to present an additional
admonition about defendants' use of the document in the form of a proposed jury
instruction, but they declined. This
court may not substitute its judgment for that of the trial court. (See Grimshaw
v. Ford Motor Co., supra, 119 Cal.App.3d at p. 794 [determinations of
motion for mistrial based on counsel misconduct "may not be disturbed on
appeal unless they are patently wrong"].)
Because there was no incurable prejudice created by defendants' conduct,
the court properly denied the Pedrazas' motion for mistrial.
IV. JURY
SELECTION
A. Improper Racial Bias
The
Pedrazas contend the defendants impermissibly used peremptory challenges to
remove two Hispanic prospective jurors.
We conclude there was no error.
In ruling
on a motion challenging the exercise of peremptory strikes as improperly
racially biased, "the trial court follows a three-step procedure. 'First, the [challenging party] must make out
a prima facie case "by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose." [Citation.]
Second, once the [challenging party] has made out a prima facie case,
the "burden shifts to the [other party] to explain adequately the racial
exclusion" by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, "[i]f a race-neutral explanation
is tendered, the trial court must then decide . . . whether
the opponent of the strike has proved purposeful racial discrimination." '
" (People v. Clark (2011) 52 Cal.4th 856, 904.) A litigant's justification for a peremptory challenge need not rise to the level
of a challenge for cause, and even a trivial reason or
hunch, if genuine and neutral, will suffice.
(People v. Lenix (2008) 44 Cal.4th 602, 613.) A prima facie case is established "by
producing evidence sufficient to permit the trial judge to draw an inference
that discrimination has occurred."
(Johnson v. California (2005)
545 U.S. 162, 170.) The challenging
party " 'carries the "burden of persuasion" to "
'prove . . . discrimination.' " ' " (People
v. Avila (2006) 38 Cal.4th 491, 548).
"We
review the trial court's ruling on the question of purposeful racial
discrimination for substantial evidence."
(People v. Avila, supra, 38
Cal.4th at p. 541.) "It is presumed
that [counsel] uses peremptory challenges in a constitutional manner, and we
give deference to the court's ability to distinguish 'bona fide reasons from
sham excuses.' " (
If the trial court does not use the proper standard to evaluate a
motion, however, this court must independently
review the record and "'resolve the legal question whether the record
supports an inference that [counsel] excused a juror on the basis of race.'
" (Avila, at p. 554.)
During voir
dire, defendants used the second of their six peremptory challenges to excuse
prospective jury Mary R. Immediately
thereafter, Sussman requested a sidebar conference and stated she was
"concerned that Mr. Carroll is going to excuse all the Hispanics and
Mexicans on this jury, and we don't have very many." The court construed the statement as a motion
under Wheeler, noted that Mary did
not appear to be Hispanic, that defendants' first peremptory was used to excuse
a man of Asian heritage, and found the motion premature.
Defendants
used their third peremptory to excuse Guadalupe M., whose surname was
Hispanic. Sussman renewed her
two African-American jurors was no different than his dismissal of Guadalupe
and stated, "I don't like her, and I don't like her on this jury, and
that's all I have to do to explain."
The court then denied the motion:
"[L]ooking at what we have so far, as far as I'm able to determine,
there's one challenge against someone who is of Mexican extraction. That's not enough to make a pattern or
practice. I am sensitive to that. And I will be on the lookout to see if this
does appear to be an attempt to exclude any racial minority from service on
this jury." The jury panel that was
sworn included a Hispanic male.
name="_ftnref10" title="">[10]
The
Pedrazas contend the court improperly required a "pattern or practice"
of racially motivated challenges to establish a prima facie case. Further, they argue a prima facie case of
bias was established and defendants failed to adequately rebut that showing. With respect to Mary, the trial court did not
believe she was Hispanic. The Pedrazas'
counsel was herself unsure of Mary's heritage, noting "I believe [she is]
Hispanic. I'm not positive." The Pedrazas point to no other information
before the court showing her ethnicity.
Pedrazas failed to establish a prima facie showing of bias and denial of the
motion was not error.
We also
conclude there was no error in the denial of the Pedrazas' Wheeler motion concerning defendants' excusal of Guadalupe. The Pedrazas correctly point out "a
pattern of discrimination, revealed in multiple excusals" (
554) is not necessary to establish a prima facie case of improper bias. (Id.
at pp. 553-554.) Here, the court did not
specifically articulate the standard it used to deny the motion as to
Guadalupe, but stated "one challenge against someone who is of Mexican
extraction" was "not enough to make a pattern or practice." Because there is ambiguity as to whether the
court incorrectly required a "pattern or practice" of racially
motivated peremptory challenges, we will " 'resolve the
supports an inference that the [defendants] excused a juror on the basis of
race.' " (Id. at p. 554, original italics.)
During
general voir dire by the court, Guadalupe stated she was currently a paralegal
with the office of the district attorney and had been there for 10 years. She also stated she was single and did not
have any children, and she has friends who are attorneys and friends in law
enforcement. Defense counsel questioned
Guadalupe about her personal experience with gynecological surgery, which she
had undergone, and endometriosis, which she stated she was familiar with. Guadalupe's first language was Spanish and
she was raised partly in Mexico. Defense
counsel also asked Guadalupe whether she could wait until defendants presented
their case before making a decision to which she responded she thought she
could.
Guadalupe's responses during voir
dire revealed neutral reasons for defendants to excuse her, including that she
was in the legal profession, had friends who were attorneys and in law
enforcement, and had personal experience with gynecological surgery. (See, e.g., People v. Clark (2011) 52
Cal.4th 856, 907 [finding race-neutral basis for peremptory challenge where
legal professional "might consciously or unconsciously exert undue
influence during the deliberative process, or that fellow jurors would ascribe
to her a special legal expertise"]; People v. Buckley (1997)
53 Cal.App.4th 658, 667-668 [prosecutor stated race-neutral grounds for
excusing a prospective juror who had a history of working in various legal
departments].)
The fact that defendants' counsel
specifically questioned Guadalupe before using a peremptory challenge against
her also dispels an inference of improper bias.
(See People v. Kelly (2007) 42 Cal.4th 763, 779-780 [" 'In
deciding whether a prima facie case was stated, we consider the entire record
before the trial court [citation], but certain types of evidence may be
especially relevant:
" . . . the failure of his opponent to engage
these same jurors in more than desultory voir dire, or indeed to ask them any
questions at all." ' "].
Finally, the fact that defendants did not use one of their three
remaining peremptory challenges to excuse the other Hispanic juror also weighs
against a finding of improper racial motivation. (See People v. Cornwell (2005) 37
Cal.4th 50, 69-70 [evidence that the prosecutor challenged one of two
African-American prospective jurors is insufficient to establish a prima facie
showing, particularly in view of the circumstance that the other
African-American prospective juror ultimately sat on the jury].)
Based on our independent
review of the voir dire, we conclude the record does not support an inference
Guadalupe was excused because of race and thus find no error in the court's
denial of the Pedrazas' Wheeler
motion.
B.
The
Pedrazas also contend the court erred by overruling their challenges for cause
against a juror who was a friend of the judge and against all prospective
jurors employed by UCSD. During the
court's general voir dire of the initial panel of 21 prospective jurors, one,
Don I., disclosed he was friends with the judge and he and his wife had known
her for more than 20 years. In response
to the Pedrazas' questioning of Judge Hayes outside the presence of the
prospective jurors, Judge Hayes explained she and her husband knew Don and his
wife through a third party and had socialized with them at the third party's
home infrequently and never alone.
Two other
of the 21 prospective jurors, Jean A. and Taura G., were employed by the
Regents. Jean worked as a physical
assistant at UCSD in the school for international relations and studies and
Taura as a software programmer and instructor at the medical center for the
Regent's electronic medical record system. Taura had interacted with Dr.
Silverman, Dr. Saenz and other witnesses in the course of her work, providing
help desk computer support and training on computer applications, but did not
have a personal relationship with any of them.
Both Jean and Taura stated they would not be uncomfortable sitting in
judgment of the Regents, nor be inclined to favor the Regents. After their challenges for cause with respect
to all three prospective jurors were overruled, the Pedrazas used one of their
six peremptory challenges to excuse Taura from the jury. At the time the jury was accepted, with both
Don and Jean impaneled, the Pedrazas retained one peremptory challenge.
To raise a
claim on appeal that a juror should have been excused for cause, " 'we
require, first, that a litigant actually exercise a peremptory challenge and
remove the prospective juror in question.
Next, the litigant must exhaust all of the peremptory challenges
allotted by statute and hold none in reserve.
Finally, counsel . . . must express to the trial
court dissatisfaction with the jury as presently constituted.' " (People
v. Bivert (2011) 52 Cal.4th 96, 114.)
The Pedrazas failed to meet these requirements. The Pedrazas did excuse Taura, but they
failed to excuse either Don or Jean with their last peremptory challenge and
provide no justification for not excusing one of these jurors.
dissatisfaction with the jury as it was constituted.
Even if the
Pedrazas had satisfied these requirements, they provide no legal support for
their argument that they were prejudiced by the court's ruling on their
challenge to Don and Jean. "[T]he
qualification of jurors challenged for cause are matters within the wide
discretion of the trial court, seldom disturbed on appeal." (People
v. Sanchez (1989) 208 Cal.App.3d 721, 732.) Jean had no relationship
to the individual defendants and, although she was employed by the over-arching
body of the Regents, her employment was not related to medical services
provided by UCSD. Further, she stated
her employment would not affect her ability to be impartial. Don's friendly relationship with the judge,
not defendants, likewise presented no challengeable bias to the parties. He also explicitly stated he could be a fair
and impartial juror. The trial court did
not err in overruling the Pedrazas' challenges for cause against Don or Jean.
V. REGENTS'
MOTION FOR NONSUIT
The
Pedrazas argue the court improperly granted the Regent's motion for
nonsuit. Just before the close of trial,
during the conference set to finalize the jury instructions and verdict form,
the Regents made an oral motion for nonsuit contending the Pedrazas failed to
present evidence to support a verdict against it based on its own
negligence. The Regents admitted if
either Dr. Silverman or Dr. Saenz were found to be negligent, then it would be
liable under an agency theory. The
Pedrazas opposed the motion, arguing Dr. Zeiderman's testimony that he saw no
evidence that Dr. Silverman was proctored with respect to the robotically
assisted laparoscopic surgical technique supported a finding of negligence
against the Regents.
"A
defendant is entitled to nonsuit if the trial court determines evidence
presented by the plaintiff is insufficient as a
in [his or her] favor." (
1062, 1065.) The "court may not
weigh the evidence or consider the credibility of witnesses," but
"must accept the evidence most favorable to the plaintiff as true and
disregard conflicting evidence." (
It must accord the plaintiffs' evidence with "all the value to
which it is legally entitled, including every legitimate inference that may be
drawn in the plaintiff's favor." (
"A mere 'scintilla of evidence' is not enough, however" to
avoid nonsuit; instead, "[t]here must be substantial evidence creating a
conflict for the jury to resolve."
(Ibid.)
In order to
prove a claim of medical malpractice, the plaintiff must establish the
defendant breached the standard of care, which "requires that medical
service providers exercise that reasonable degree of skill, knowledge and care
ordinarily possessed and exercised by members of their profession under similar
circumstances." (
Cal.App.4th 208, 215.) "The
standard of care against which the acts of a medical practitioner are to be
measured is a matter peculiarly within the knowledge of experts; it presents
the basic issue in a malpractice action and can only be proved by their
testimony, unless the conduct required by the particular circumstances is within
the common knowledge of laymen." (
Under the
Pedrazas' theory, expert testimony showing the Regent's failure to proctor Dr.
Silverman breached the applicable standard of care was necessary to find the
Regents independently liable. Although
Dr. Zeiderman did testify that Dr. Silverman was not proctored, the Pedrazas
presented no evidence showing that the applicable standard of care required
proctoring.
They
contend this was through no fault of their own because the court precluded Dr.
Zeiderman from testifying with respect to robotically assisted laparoscopic
surgery. As noted, the objections the
court sustained to Dr. Zeiderman's testimony about the robot concerned his lack
of personal experience with the technique and, despite these rulings, he was
ultimately permitted to testify to the drawbacks of using the robot. Importantly, this line of inquiry concerned
Dr. Silverman's decision to operate using the robot rather than perform a
laparotomy. It did not concern whether
the applicable standard of care required the hospital to subject Dr. Silverman
to proctoring. No evidence concerning
the required element of the standard of care and how that standard was breached
was presented to the jury and the Pedrazas have not shown they were improperly
precluded from presenting such evidence.
The motion for nonsuit was properly granted.
DISPOSITION
The judgment is affirmed.
The defendants are awarded costs on appeal.
NARES,
J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] We discuss additional facts throughout the opinion where
relevant to a particular legal contention.
name="_ftn2" title="">[2] To avoid this waiver, the Pedrazas state, "[T]here is
no waiver of an objection based upon personal bias toward a party absent a
written stipulation" and cite Code of Civil Procedure section 170.3,
subdivision (b)(2)(A). That provision,
however, precludes a trial judge who admits disqualification is appropriate
from obtaining a waiver of disqualification from the parties permitting him to
preside where the judge has a personal bias or prejudice concerning a
party. (Code Civ. Proc., § 170.3,
subd. (b)(2)(A).) It does not address a
party's waiver of the right to seek disqualification after learning of facts
indicating bias.
