Valdez v. LomaLindaUniv.Med.Center

Filed 9/20/07 Valdez v. Loma Linda Univ. Med. Center CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

MacRill & MacRill, John R. Macrill, Jr., John R. MacRill III; Greines, Martin, Stein & Richland, Irving H. Greines, Timothy T. Coates and Alan Diamond for Defendant and Appellant.

Paul & Janofsky, Gary M. Paul; Freedman Boyd Daniels Hollander Goldberg & Ives, Michael L. Goldberg, Zachary A. Ives and Matthew Garcia for Plaintiff and Respondent.

PROCEDURAL HISTORY

Edward Valdez, Jr., through his guardians ad litem, sued Loma Linda University Medical Center (hereafter LLUMC), Prism Technologies, Inc., Prism Health Care and Mother Labs Services, Inc. (hereafter collectively Prism), for personal injuries he received as a newborn infant, when a nurse at LLUMC placed a heel warming device manufactured by Prism on his left heel, resulting in a third-degree burn and permanent scarring and deformity to his heel. Valdez settled with Prism prior to trial for $140,000. A jury awarded Valdez $665,000 against LLUMC. The award against LLUMC was offset by the portion of the settlement with Prism representing economic damages. LLUMC filed a timely notice of appeal.

FACTUAL BACKGROUND

Facts pertaining to the specific issues raised on appeal are included in the discussion of those issues. Briefly stated, the following are the pertinent facts. Edward Valdez, Jr., was born at LLUMC on January 10, 1999. The following day, nurse Holly Lally, on duty in the newborn nursery, prepared to draw blood from Valdezs heel for routine medical tests. Lally testified that she applied a Prism gel warming device to Valdezs heel.^[1] The heel warmer stimulates blood flow to the heel to facilitate the drawing of blood. Lally activated the device, held it in her hand for about one minute, and then applied it to Valdezs heel. She left it in place for about five minutes. During that time, Lally was only a few feet away from Valdez, doing paperwork and making entries on the nursery computer. The device did not feel hot to her when she applied it, and she testified that while it was in place, the baby was crying but appeared only to be fussy, not in pain.

When Lally removed the heel warmer, she noticed that Valdezs heel was blistered and was oozing red-tinged fluid. She cooled the foot with a cloth soaked in cool water, and then called the pediatric resident for assistance. After Valdez was removed to the newborn intensive care unit, Lally retrieved a heel warmer from the waste container in the nursery. There were about 20 of the devices in the container and she could not be sure which was the one she used on Valdez. One of the devices was still warm, however, and she assumed that it was the one she had used on Valdez. She reported the incident to her nurse manager, Barbara Nanam, and gave her the heel warmer.

No witness who testified for either party was aware of any prior incident in which an infant had been burned by a gel heel warmer. Grant Hassmann, the president of Pristech (the successor of Prism), was aware of two complaints about the devices contained in an FDA database, but testified that the company had never been contacted about the complaints and that he was unaware that either incident was similar to the incident involving Valdez or that either incident involved an infant actually being burned.

The heel warming devices are manufactured specifically for use on infants. Prisms devices contain water and sodium acetate. When the device is activated, the ingredients combine and heat to between 103 and 106 degrees. A temperature in excess of 120 degrees would have been required to produce the burn Valdez suffered. Both LLUMCs expert, Dr. Banerian, and Valdezs expert, Dr. Hendrickson, testified that the device Lally removed from the waste basket in the nursery heated to 131 degrees when it was reactivated several years later. Dr. Hendrickson opined, based on her testing and analysis, that the temperature the device reached when she reactivated it was consistent with the device having lost a certain percentage of its water. However, she concluded that it had lost water over a long period of time. She concluded that her results were consistent with the device having had the correct amount of water at the time of the accident to have prevented it from reaching a temperature in excess of about 104 degrees. Therefore, she concluded that the device was not defective at the time it was applied to Valdezs foot.^[2] Hassmann testified that the devices are manufactured in batches of 25,000 and that the ratio of water to sodium acetate is consistent throughout any given batch. Therefore, if one device was defective in the ratio of water to sodium acetate, the entire batch would be consistently defective. Prism received no reports of other devices reaching excessive temperatures around the time of Valdezs injury. However, LLUMCs expert, Dr. Banerian, concluded that the device was defective when it was first used, due to loss of water resulting from excessive porosity of the membrane.

Valdez suffered a third-degree burn on his left heel. The injury left him with very little tissue over the heel bone, as well as limited flexion. At the time of trial, he was six years old and walked with a limp to avoid heel pressure and pain.^[3] A board-certified physical therapist testified that Valdezs artificial gait was likely to cause joint and lower back problems as he matured. A board-certified plastic surgeon who evaluated Valdez testified that multiple surgeries could restore some padding to the heel and improve flexibility and gait, although the prognosis was uncertain. Treatment would cost approximately $200,000.

LEGAL ANALYSIS

THE JUDGMENT CANNOT BE REVERSED BASED ON A THEORY OF JUDICIAL ESTOPPEL OR JUDICIAL ADMISSION WHICH WAS NOT RAISED IN THE TRIAL COURT

LLUMC contends that principles of judicial estoppel or judicial admission should have precluded Valdez from changing his theory of liability during the course of the proceedings.

Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. The doctrines dual goals are to maintain the integrity of the judicial system and to protect parties from opponents unfair strategies. Application of the doctrine is discretionary. The doctrine applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.) Under the doctrine of judicial admission, a party is estopped to deny any material factual averments contained in his pleadings or other judicial documents. (See 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 413 et seq.)

LLUMC contends that both doctrines apply because Valdez initially alleged exclusively that his injury was caused by a defective Prism heel warmer, but then, when he reached a settlement with Prism, did an about-face and asserted not only that the device was not defective but that it was not even the cause of his injury. LLUMC contends that Valdez made binding judicial admissions that the device was used on him and that it was defective, causing his injury.

The issue arose as follows. In his complaint, Valdez alleged that his injury resulted from unspecified negligence on the part of LLUMC. Prism was not then a defendant. Through discovery, Valdez learned that LLUMC contended that the burn was not caused by its negligence but by a defect in the Prism heel warmer. He obtained leave to amend the complaint to include a cause of action for strict product liability against Prism. In the first amended complaint, he alleged that the heel warmer manufactured by Prism was defectively designed and/or manufactured or inspected, that the defective and unreasonably dangerous condition of the device was a proximate cause of his injuries, and that the device was the product which caused [the] injury herein. The allegation that the heel warmer was the product which caused [the] injury herein was incorporated by reference into his cause of action for negligence against LLUMC.

Valdez settled with Prism and dismissed the complaint as to it. In his petition for approval of minors compromise, Valdez stated that the Prism heel warmer caused his injury.

In his trial brief, filed in preparation for the trial of his claim against LLUMC, Valdez stated that his cause of action against LLUMC was based on (1) The failure of Nurse Lally to monitor or watch the child after placing the heel warmer on the infants foot; (2) The hospitals failure to properly train or instruct the nursing staff on how to apply a heel warmer to an infants foot, i.e. to watch it so the infants foot will not burn; and (3) The failure of the hospital to warn or inform the parents of the dangers involved in applying a heel warmer to their childs foot, and not obtaining the parents informed consent. He also stated, however, that there was no evidence that the Prism heel warmer was in fact defective, and that his nursing expert, Heidi Funk, would offer her opinion that LLUMCs nurse did not use a gel-pack heel warmer such as the one manufactured by Prism, but instead applied some other device, such as a diaper with hot water, or a wash cloth with hot water.

LLUMC filed a motion in limine to exclude Funks testimony, arguing that she had no knowledge as to what caused Valdezs injury and that her testimony did not constitute proper expert opinion evidence. It also asserted that Valdez should not be permitted to rely on the doctrine of res ipsa loquitur, as argued in Valdezs opposition to LLUMCs motion in limine.

At the hearing on the motion, the trial court ruled that Funk could testify that the nurse on duty did not accurately chart what had happened, that subsequent actions by the nurse and the hospital were not consistent with LLUMCs claim that the heel warmer was defective, and that other methods of warming Valdezs heel might have been used and might have caused his injury. The court noted that even if the Prism heel warmer was used and did generate excessive heat, there was still an issue as to whether the nurse should have been more attentive and should have noticed that the device was too hot. It limited Funks testimony only to the extent that it precluded her from offering an opinion as to the cause of the injury.

Although LLUMC complained in its moving papers and during the hearing that Valdez had changed his theory and charged Valdez with duplicity in asserting that the heel warmer was defective in order to obtain the settlement with Prism and then asserting that the heel warmer was not even used in order to obtain a judgment against LLUMC, at no time did LLUMC assert that Valdez was precluded from changing his theory, either by virtue of the principles he now asserts, i.e., judicial estoppel and judicial admission, or on any other basis. Rather, LLUMC sought only to preclude Heidi Funks testimony and Valdezs reliance on the doctrine of res ipsa loquitur.

Appellate courts will ordinarily not address contentions which could have been raised in the trial court but were not. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) We have the discretion to consider certain types of issues raised for the first time on appeal, such as purely legal questions where the material facts are undisputed. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.) Whether judicial estoppel applies is not a question of law, however, but a question of fact to be determined by the trial court. (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 354.) The application of the doctrine is a question of law only if the material facts are undisputed. (Drain v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, 959, fn. 8.) Here, because the issues underlying LLUMCs contentions concerning judicial estoppel were not litigated below, the material facts were not adjudicated, and we cannot presume that those facts are undisputed. Furthermore, because judicial estoppel is an equitable doctrine, its application is discretionary, even where all necessary elements are present. (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422-423.) Because the contention could have been addressed in the trial court, it is the trial court, not this court, which should have been given the opportunity to exercise that discretion, assuming that it found the necessary factual basis for application of the doctrine. Our function should be merely to review that courts ruling for abuse of discretion, not to exercise that discretion in the first instance.

Similarly, LLUMC did not seek an adjudication below that Valdezs pleadings, answers to interrogatories and other documents constitute binding judicial admissions that the device was used and that it was defective. Whether a statement constitutes a binding judicial admission is essentially a question of fact; the trial court retains discretion to determine the scope and effect of an admission, and to permit evidence explaining the partys understanding with respect to the scope and meaning of his admission. (Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272, 276-278.) Moreover, the trial court has the discretion to permit a party to amend his pleading to avoid the preclusive effect of an admission. (See 4 Witkin, Cal. Procedure, supra, 415.) Had LLUMC sought a ruling that Valdezs answers to interrogatories constituted a binding judicial admission, the trial court might well have allowed Valdez to amend his complaint to conform with subsequently discovered facts, if it determined that amendment was necessary.^[4] Because these decisions are committed to the discretion of the trial court, we decline to address them in the first instance on appeal.

LLUMC HAS FAILED TO DEMONSTRATE PREJUDICE FROM ANY ERROR IN INSTRUCTING THE JURY ON RES IPSA LOQUITUR

LLUMC contends that the trial court erred by instructing the jury on res ipsa loquitur. As we discuss below, LLUMCs argument is based on several faulty premises. In particular, its argument is flawed because it fails to appreciate the effect of the applicable standard of review. LLUMCs argument rests primarily on the premise that res ipsa loquitur is inapplicable as a matter of law, based on what it contends is a conclusive state of the evidence, and that reversal is required per se. As we discuss, LLUMCs factual theory was not conclusively proven. Furthermore, an instruction allowing the application of an erroneous legal theory is not reversible error per se. Rather, reversal is required only upon an affirmative showing that it is reasonably probable that the instruction misled the jury and affected the verdict adversely to the appellant. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570-571, 580-581 & fn. 11; Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213.) LLUMC has not met its burden of demonstrating prejudice under this standard.

Res ipsa loquitur is a presumption affecting the burden of producing evidence. (Evid. Code, 646, subd. (b).) The presumption arises when the plaintiff produces evidence sufficient to satisfy three conditions: (1) that the accident is of a kind which ordinarily does not occur in the absence of someones negligence; (2) that the accident was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) that the accident was not due to any voluntary action or contribution on the part of the plaintiff. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.) The presumption requires the trier of fact to presume that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. (Id. at p. 826; Evid. Code, 604, 646, subd. (c)(1).) However, if the defendant introduces evidence which would support a finding that it was not negligent or that any negligence on its part was not a proximate cause of the occurrence, the trier of fact determines whether the defendant was negligent without regard to the presumption, simply by weighing the evidence. (Brown v. Poway Unified School Dist., supra, at p. 826; Evid. Code, 646, subd. (c).)

Res ipsa loquitur is fundamentally . . . predicated upon inference deducible from circumstantial evidence. (Hale v. Venuto (1982) 137 Cal.App.3d 910, 918.) It is based on a theory of probability where there is no direct evidence of [the] defendants conduct, . . . permitting a common sense inference of negligence from the happening of the accident. (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75.) The plaintiff need not produce evidence excluding all possible causes other than the defendants negligence. When the defendants negligence is one of several possible causes reasonably inferable from the evidence, the choice or rejection of the particular inference must be left to the jury. (Inouye v. Black (1965) 238 Cal.App.2d 31, 33-34.) The jury need not conclude that negligence is the only explanation for the accident, but merely the most probable one. [Citations.] We deal here in probabilities, not certainties. (Newing v. Cheatham (1975) 15 Cal.3d 351, 360.)

LLUMC contends that res ipsa loquitur does not apply to the facts of this case as a matter of law. Its argument is based on at least two faulty premises. The first such premise is that it was conclusively established that Valdezs injury was caused by the defective Prism heel warmer. On that basis, it asserts that because the mechanism which caused the injury is known, res ipsa loquitur is not needed to fill an evidentiary gap by providing an inference of negligence. This is incorrect. Although the testimony of LLUMCs witnesses, including nurse Lally and LLUMCs expert, Dr. Banerian, constituted substantial evidence that the Prism device was defective and that it was the cause of the injury, there was also substantial evidence which supports the conclusion that the device was not defective and therefore could not have caused the injury. Valdezs expert chemist, Dr. Hendrickson, opined that the device she tested was not defective when it was originally activated. Grant Hassmann, the president of Pristech, the successor of Prism, testified that the devices are manufactured in batches of 25,000, and that the ratio of water to sodium acetate is consistent throughout any one batch. Therefore, if one device had an incorrect ratio of water to sodium acetate, all of the devices in that batch would also have that incorrect ratio. LLUMC did not provide him with the information he needed to determine the lot which was the source of the device used on Valdez. However, he received no reports of any other devices being defective. This evidence rationally supports the conclusion that the device used on Valdez was not defective.

Under the latter scenario, i.e., that the Prism device was not defective, res ipsa loquitur applies. It was undisputed that an object heated to 104 degrees, the normal temperature for a Prism heel warmer, would not have burned Valdezs foot. Therefore, if the Prism device was not defective, as Valdezs expert testified, it could not have become hot enough to cause the burn no matter how the nurse applied it. However, Valdez was burned, and the cause of the burn had to be whatever mechanism Lally used to warm his heel. If the Prism device could not have caused the burn, logic dictates that the burn was caused by the application of some other warming device, the nature of which was not known to Valdez. This is a classic scenario for the application of res ipsa loquitur: A device of an unknown, or at least disputed, nature was used on an infant. The child suffered serious burns, an event which normally would not occur in a hospital nursery in the absence of someones negligence, but the nurse could not explain how the burns occurred.

The fact that there is an alternate explanationthat the device itself was defective, and the nurse was not negligent in her use of the device because there was nothing to indicate that the infant was being burnedmay operate to defeat the presumption (see Brown v. Poway Unified School Dist., supra, 4 Cal.4th at pp. 825-826; Evid. Code, 646, subd. (c)), but it does not render the giving of the instruction an error.^[5]Rather, if there is sufficient evidence to warrant a finding for the plaintiff on a res ipsa loquitur theory, the plaintiff is entitled to a conditional instruction making res ipsa loquitur applicable in the event of such a finding. (Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 818.) It is then the jurys function to determine the facts: Where the evidence is conflicting or subject to different inferences as to a fact necessary to the applicability of the [res ipsa loquitur] doctrine, for example, as to . . . whether an injury was caused by the conduct of the defendant rather than by the acts of someone else, the question of fact must be left to the jury under proper instructions. (Id. at p. 817.) Here, the jury was so instructed, using Judicial Council of California Civil Jury Instructions, CACI No. 518, as set forth below.^[6]

A second false premise, albeit an unstated one, is that if the Prism device was defective, then LLUMC could not have been found liable. LLUMC appears to contend that if the device was defective, the burn would necessarily have ensued, regardless of anything Lally did or did not do. However, there was substantial evidence from which jurors could infer that Lally was negligent in her use of the device, either because she failed to notice that the device was too hot to apply or because she failed to monitor the baby and failed to notice that he was being burned. LLUMCs own expert on the nursing standard of care, Sharon Dey-Layne, testified that the standard of care requires a nurse to monitor a baby carefully while a heel warmer is in place, even though there had never been a report of any injury resulting from the use of a heel warmer, because there was nevertheless the possibility that the child would be burned. Valdezs nursing expert, Heidi Funk, also testified that the nurse should have monitored the device to be sure it did not become too hot. There was also substantial evidence from which the jury could infer that Lally failed to recognize that Valdez was being burned. Medical witnesses testified that a day-old infant would feel pain from such a severe burn, and there was testimony that an infants cry of pain should be distinguishable from a fussy cry. From this, jurors could reasonably infer that Lally negligently failed to recognize that Valdez was being burned.

Although LLUMC is correct that a hospital or other provider is not subject to strict liability for the mere use of a defective product (see fn. 4, ante), we are aware of no authority that a defect in a medical device insulates a medical provider from liability for its own failure to exercise due care in the use of the device. On the contrary, the rule that there can be multiple concurrent causes of an injury applies in medical malpractice cases. It suffices if the medical negligence is a substantial cause of the patients injury. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317-1318, 1321-1322.) Thus, even if the jury concluded that the Prism device was used and was defective, it could have found LLUMC liable for negligence if it found it more probable than not that Lallys inattentiveness allowed the device to burn the babys foot.

LLUMC also contends that Valdez failed to introduce sufficient evidence to satisfy the first two prongs of res ipsa loquitur.

First, it contends that Valdez was required to present expert testimony to establish there was a reasonable medical probability that Lallys breach of the standard of care caused his injury. As noted elsewhere, there was expert testimony on the applicable standard of care. Those witnesses testified that Lally failed to comply with the standard of care if she failed to notice that the device was too hot initially or if she failed to monitor Valdez sufficiently to recognize that he was being burned. Expert testimony is not necessary, however, to establish that the medical practitioners act or omission caused the injury if the cause and effect relationship between the negligence and the injury is sufficiently obvious to fall within the common experience of laypersons. The common knowledge exception to the rule requiring expert testimony as to causation in a case based on res ipsa loquitur applies when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. [Citations.] (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted.) Where the procedure involved is a simple one, there is less likelihood that expert testimony will be required. (Bardessono v. Michels (1970) 3 Cal.3d 780, 790; Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 801-802.)

That a hot object will cause a burn if left in contact with skin for a sufficient length of time is within the knowledge of a layperson. It was undisputed that whatever device Lally used on Valdez caused his injury. Drs. Hendrickson and Banerian testified that the heel warmer reached a temperature of 131 degrees when it was first activated. Another expert witness, Dr. Martin, testified that application of a device heated to 120 degrees or more would result in second- and third-degree burns. Thus, there was no need for expert testimony to make the connection between Lallys negligence and Valdezs injury explicit.

LLUMC also contends the evidence did not point exclusively to negligence by Lally as the cause of the injury because there was evidence that Prism was liable for providing a defective product. Because the evidence showed that it was at least equally probable that Prism was at fault, it contends, res ipsa loquitur does not apply. We disagree, because, as discussed above, a finding that Prism supplied LLUMC with a defective product does not absolve it of liability for its own negligence in the use of the product. For purposes of res ipsa loquitur, it is sufficient if a reasonable trier of fact could conclude that the evidence points to the defendants negligence as a substantial cause of the plaintiffs injury. (Espinosa v. Little Co. of Mary Hospital, supra, 31 Cal.App.4th at pp. 1317-1318, 1321-1322.)

Finally, LLUMC contends that res ipsa loquitur cannot apply because the device was not within its exclusive control. It contends that it had no control over the chemical composition of the device and thus had no control over the excessive temperature caused by the defect in the device. The flaw in this argument is that Valdezs theory was that Lally was negligent in her use of the device, i.e., that she either failed to notice that it was too hot when she applied it or that she failed to recognize that Valdez was being burned. Thus, although LLUMC could not control the fact that the device was defective (assuming that it was), it did have exclusive control over a substantial cause of Valdezs injury, i.e., the manner in which the device was used. The purpose of the control requirement is to link the defendant with the probability, already established, that the accident was negligently caused. (Newing v. Cheatham, supra, 15 Cal.3d at p. 362.) The evidence is sufficient to satisfy that prong.^[7]

Even if we were to agree, however, that the res ipsa loquitur instruction should not have been given, we would still affirm the judgment because LLUMC has utterly failed to show that the use of the instruction was prejudicial.

In civil cases, an instruction allowing the application of an erroneous theory is prejudicial only if, based on the evidence, the arguments of counsel and such other factors as may be relevant under the particular circumstances of the case, the reviewing court can determine that it is reasonably probable that the instruction actually misled the jury and affected the verdict. (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571, 580-581 & fn. 11; Lundquist v. Reusser, supra, 7 Cal.4th at p. 1213.) The appellant must explicitly spell out how, under the particular facts of the case, the instructional error caused a miscarriage of justice. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.)

LLUMC makes little effort to explain exactly how the instruction on res ipsa loquitur was likely to have influenced the jury to its prejudice. It primarily reiterates its contentions that the evidence did not support the instruction, and contends that the error was necessarily prejudicial because it permitted the jury to infer negligence without direct proof that Lally negligently did or failed to do anything in using the heel warmer and effectively made [it] liable for its mere use of a defective product, thus allowing plaintiff to assert a backdoor strict liability claim against the hospital. Allowing an inference of negligence is, of course, the function of res ipsa loquitur. (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at pp. 825-826.) Thus, LLUMCs argument begs the question, in that it assumes that merely giving the instruction requires reversal.

LLUMC comes closest to making a meaningful prejudice argument when it contends that in the absence of the instruction, the jury might have believed the evidence favorable to it, i.e., that the Prism heel warmer was defective. It contends that if the res ipsa loquitur instruction had not been given, there would have been no evidence of negligence, because Funks testimony did not constitute substantial evidence of negligence on the part of Lally. However, as we have discussed elsewhere, even if the jury concluded that the Prism device was defective, it could still have concluded that Lally was negligent in her use of it, based on the testimony of both parties nursing experts.

LLUMC does not address the greatest hurdle to a finding of prejudice: the conditional nature of the res ipsa loquitur instruction. The instruction clearly informed the jury that it could reject the inference of negligence even if it found that the injury ordinarily would not have occurred unless someone was negligent. Because the jury was instructed that it was free to disregard the inference of negligence even if it found that Valdez had proven the foundational facts necessary for the application of the inference, it is difficult to discern how the instruction could have been prejudicial under the applicable standard, i.e., that there is a reasonable probability that the jury was misled and that it would have returned a more favorable verdict in the absence of the instruction. (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571, 580-581 & fn. 11.)

VALDEZ INTRODUCED ADMISSIBLE EVIDENCE THAT LALLY USED SOMETHING OTHER THAN THE PRISM HEEL WARMER TO WARM VALDEZS HEEL

Valdezs expert on the nursing standard of care, Heidi Funk, testified that she believed that Lally had used something other than the Prism device to warm Valdezs heel because no one had ever been burned by a Prism heel warmer. She opined that Lally had probably used a diaper or a cloth heated with hot water or in a microwave oven. She testified that those methods were used before the advent of gel heel warmers such as the Prism device. LLUMC contends, under three separate headings, that this evidence was purely speculative and did not constitute substantial evidence that Lally burned Valdez by means of the negligent application of a heated diaper or cloth.

An experts opinion is substantial evidence only if it is based on conclusions or assumptions supported by evidence in the record. It is not substantial evidence if it is without evidentiary support, or based on factors which are speculative or conjectural. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) However, an expert witness may form an opinion based on the exclusion of other possibilities if the record provides a basis to do so. For example, in Santa v. Industrial Acc. Commission (1917) 175 Cal. 235, a painter fell and fractured his pelvis. He died several weeks later of a rupture in a ventricle of his heart. There was no direct evidence as to what caused the rupture. The pathologist testified that an embolus resulting from the pelvic fracture could have traveled to the heart, causing pressure on the wall of the ventricle and leading to the rupture of the ventricle wall. There was no direct evidence that an embolus had existed, but the pathologist testified that an embolus is easily overlooked during an autopsy, and the fact that none was discovered did not necessarily mean that it had not existed. He testified that other conceivable causes of the rupture were excluded by the conditions shown to exist. The California Supreme Court held that this testimony was not conjectural or based on speculation. Rather, the pathologists opinion was based on the facts before him and on medical science, and constituted, in the pathologists opinion, the most likely explanation as to the cause of death. (Id. at pp. 236-237.)

Funks opinion that something other than the Prism heel warmer was used was a logical inference from her knowledge that no burns had ever resulted from the use of a Prism heel warmer. That fact was within her expertise. The conclusion that something other than the Prism heel warmer was used is independently supported by the opinion of Dr. Hendrickson that the heel warmer LLUMC contended was the one used on Valdez was not defective. If it was not defective, it could not have caused Valdezs burn. If the Prism heel warmer was eliminated as a possible cause of the burn, it necessarily follows that something else was used on Valdez and was the cause of his injury. The fact that prior to the advent of gel heel warmers, nurses commonly used a diaper or cloth to warm infants heels to facilitate the drawing of blood, was also within Funks expertise. Her opinion was admissible; its weight was a matter for the jury to determine. (Santa v. Industrial Acc. Commission, supra, 175 Cal. at p. 237; accord, Schnear v. Boldrey (1971) 22 Cal.App.3d 478, 484.)

Funks testimony is distinguishable from the expert testimony found conjectural in Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, cited by LLUMC. In Bushling, the plaintiff awoke from abdominal surgery with pain in his left shoulder. (Id. at p. 497.) The defendants asserted that the shoulder pain the plaintiff suffered was not caused by the surgery itself or by any deviation from the standard of care, but that it could have resulted from any of a number of causes independent of the surgery. (Id. at pp. 500-501.) In his opposition to the defendants motions for summary judgment, the plaintiff offered declarations by two physicians who opined that the plaintiffs shoulder was probably injured as a result of his being dropped, or from improper positioning of the plaintiff or improper stretching of his arm during surgery. (Id. at pp. 503-504.) The Court of Appeal held that the declarations were not sufficient to establish the existence of a triable issue of fact because both were based on pure speculation, in that there was no evidence that the plaintiff had been dropped or improperly positioned or that his arm had been improperly stretched. (Id. at pp. 509-511.) Thus, neither declaration provided a factual basis for inferring that the injury had resulted from the possible causes posited by the declarants. Here, in contrast, Funks testimony was based on the premise, supported by substantial evidence, that the injury could not have been caused as asserted by LLUMC. Funk offered an alternative explanation, also based on facts within her expertise, i.e., alternative methods commonly used by nurses to warm infants heels. Her testimony was therefore not speculative, but, as discussed above, based on reasonable inferences from facts within her expertise.^[8]

In any event, even if Funk should not have been permitted to testify that Lally probably used a diaper or a cloth rather than a Prism heel warmer, LLUMC has not shown that the error was prejudicial. It asserts that it is reasonably probable that the verdict would have been in its favor in the absence of Funks testimony, but makes no credible argument as to why that is so. The burden is always on the appellant to demonstrate affirmatively that an error was prejudicial. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Valdez points out, correctly, that the actual mechanism Lally used to warm his heel is irrelevant, because his theory was that Lally was negligent because she failed to monitor him and failed to notice that he was being burned. Thus, any error in admitting Funks testimony that Lally probably used a diaper or a cloth was harmless.

LLUMC DID NOT CONTEND IN THE TRIAL COURT THAT EVIDENCE OF VALDEZS SETTLEMENT WITH PRISM SHOULD BE ADMITTED IN ORDER TO PERMIT IT TO INTRODUCE EVIDENCE THAT VALDEZ ADMITTED THAT THE PRISM HEEL WARMER WAS DEFECTIVE AND WAS THE CAUSE OF HIS INJURY

LLUMC contends that the trial court improperly excluded evidence that Valdez had previously sued and settled with Prism. It contends that the erroneous exclusion of this evidence precluded it from introducing evidence of Valdezs judicial admissions that his injury was caused by Prisms defective heel warmer.

As discussed above, LLUMC complained in its motions in limine about Valdezs duplicity in changing his theory. However, it did not seek permission to introduce evidence of that duplicity as an admission that a defect in the Prism device caused Valdezs injury, or for any other purpose. LLUMC has not cited to any portion of the record which shows that it later sought to introduce such evidence. Thus, it has forfeited any claim based on the purported exclusion of that evidence. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Cal. Rules of Court, rule 8.204(a)(1)(C) [appellant must produce record which affirmatively demonstrates error and must support argument with citation to pertinent portions of the record].)

The record also shows that LLUMC did not seek to introduce evidence of Valdezs settlement with Prism as proof of the instrumentality of the injury, as it now asserts. Before trial, LLUMC sought to introduce evidence that Valdez settled with Prism, but only for the purpose of showing bias on the part of Prisms president, Grant Hassmann. During the trial, counsel for LLUMC sought to ask Hassmann whether Prism, along with LLUMC, had been dragged into a lawsuit over Valdezs injury. In response to Valdezs objection that the question violated the trial courts pretrial ruling excluding any mention of the settlement with Prism, LLUMC contended that it was not seeking to introduce any evidence that Prism settled with Valdez. Rather, it wished to show that Prism had been sued by Valdez in order to rebut the inference that LLUMC had failed to contact Prism after Valdezs injury out of lack of concern about the injury. It also reasserted its contention that the evidence was relevant to show bias on the part of Hassmann.^[9]

As discussed elsewhere, an issue may not be raised for the first time on appeal, unless it is a question of pure law. (Hepner v. Franchise Tax Bd., supra, 52 Cal.App.4th at p. 1486; Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 24.) Because LLUMC has failed to demonstrate that it raised either of the foregoing contentions below, it may not seek reversal based on either such contention.

DISPOSITION

The judgment is affirmed. Plaintiff and respondent Edward Valdez, Jr., is to recover his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1]As we discuss below, at trial Valdez asserted that Lally did not use a Prism heel warmer, because his expert witness concluded that the device was not defective and could not have become hot enough to cause his burns. Instead, he asserted that the nurse was negligent because she applied some unknown type of warming device and either failed to recognize that it was too hot or failed to monitor him adequately and did not realize that he was being burned.

^[2]Dr. Hendrickson assumed that the device was used on Valdez. It would be more accurate to say that the device was not defective at the time it was used on a patient prior to being tossed into the waste basket.

^[3]LLUMC presented evidence that Valdez had no residual pain or symptoms. The jury saw Valdez walk in court and saw videotape of Valdez going about his normal activities, and was therefore able to determine whether Valdezs gait was affected by the injury.

^[4]We do not mean to imply that we have concluded that amendment would have been necessary in order to avoid dismissal, if LLUMC had raised the issue below. We acknowledge Valdezs contention that he was entitled to assert alternative theories in his complaint. We also note that, contrary to LLUMCs contentions, Valdezs theory of recovery did not depend on its denial that the Prism heel warmer was the cause of his injury. On the contrary, Valdez expressly acknowledged that there was evidence that the Prism heel warmer was used and that it was defective. He asserted that the material issue was whether the nurse who applied the warming devicewhether it was a Prism heel warmer or a heated clothdid so in a negligent manner, either because she failed to recognize that the warming device was too hot to apply to a newborn infants skin, or because she failed to monitor him adequately and failed to notice that he was being burned. This is, of course, a valid theory of liability. Although a provider of services, such as a hospital, is not liable under a theory of strict product liability merely for the use of a defective product, it can be liable if it used the product in a negligent manner. (See San Diego Hospital Assn. v. Superior Court (1994) 30 Cal.App.4th 8, 13-15; Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 344-345; Gagne v. Bertran (1954) 43 Cal.2d 481, 487.) The hospitals negligence need be only a substantial factor in causing the patients injury; it need not be the exclusive cause of the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969.)

^[5]There was much conflicting testimony about whether a newborn infant would feel significant pain from a burn on his heel. Dr. Lubens, a specialist in pediatric neurology, testified that a gradual warming burn is less likely to cause immediate pain than a sudden scalding burn. There was evidence that the tissue damage developed fully only after the device was removed from Valdezs foot, and that it was initially only a blister, similar to a sunburn. Dr. Lubens opined that Valdez probably did not feel significant pain when the burn was being inflicted.

^[6]In this case, Edward Valdez, Jr., may prove that [LLUMCs] negligence caused his harm if he proves all of the following: [] 1. That Edward Valdez, Jr.s harm ordinarily would not have occurred unless someone was negligent. In deciding this issue, you must consider only the testimony of the expert witnesses; [] 2. That the harm occurred while Edward Valdez, Jr., was under the care and control of [LLUMC]; and [] 3. That Edward Valdez, Jr.s voluntary action did not cause or contribute to the event that harmed him. [] If you decide that Edward Valdez, Jr. did not prove one or more of these three things, then you must decide whether [LLUMC] was negligent in light of the other instructions I have read. [] If you decide that Edward Valdez, Jr. proved all of these three things, you may, but are not required to, find that [LLUMC] was negligent or that [LLUMCs] negligence was a substantial factor in causing harm, or both. [] You must carefully consider the evidence presented by both Edward Valdez, Jr. and [LLUMC] before you make your decision. You should not decide in favor of Edward Valdez, Jr. unless you believe, after weighing all of the evidence, that it is more likely than not that [LLUMC] was negligent and that their [sic] negligence was a substantial factor in causing harm.

^[7]LLUMC cites numerous cases which, it contends, preclude a finding that the evidence supports each of the elements of res ipsa loquitur. However, none of the cases it cites is dispositive. Rather, each case, including this one, depends upon its own facts. We are satisfied that the application of the principles underlying the doctrine of res ipsa loquitur to the evidence in this case supports our conclusion that the instruction was properly given.

^[8]Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, cited by LLUMC, is also distinguishable. There, the plaintiff was raped in the parking garage of her apartment complex. She sued the apartment owner on a premises liability theory. Her expert opined that the rape occurred because the owners failed to repair a broken security gate. However, the rapist was never caught, and it was never established that he entered through the broken gate or that the broken gate was the only means of access. Rather, as the court noted, the rapist could have been admitted onto the premises by another tenant. Thus, the experts opinion was deemed conjectural. (Id. at pp. 476, 478-479, fn. 3, 481-486.)

^[9]LLUMC has not relied on this theory of admissibility on appeal, and we therefore do not address it.