Riley v. Century
Filed 2/7/12 Riley v. Century 21 CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
MICHELLE RILEY,
Plaintiff and
Appellant,
v.
CENTURY 21,
Defendant and
Respondent.
2d Civil No.
B231124
(Super. Ct. No.
1318152)
(Santa
Barbara County)
Plaintiff Michelle Riley
appeals a judgment in favor of defendants trustee of the Mixsell Revocable
Living Trust, Century 21 and Diane Long on her slip and fall
defendant Century 21 was negligent, but that these defendants did not cause
harm to Riley. We conclude, among other
things, that the trial court did not commit error by denying Riley's request to
call an expert in radiology to testify at trial. We affirm.
FACTS
On November 15, 2007, Riley fell while "taking
out the trash" at the apartment complex where she resided. She claimed defendants, who owned and
maintained that complex, allowed a dangerous condition to exist which caused
her to fall and sustain serious
Riley filed a personal
injury action against defendants alleging causes of action for "general
negligence" and "premises liability." She claimed the "dangerous condition
consisted of a portion of uneven concrete sidewalk on the defendants'
premises."
Before trial, Riley
designated three medical
experts to testify on her behalf‑‑Dr. Howard Gregersen, her
treating physician, Dr. Michael Fiske, her chiropractor, and Dr. Alan
Moelleken, her retained expert on spinal surgery. The defense designated Dr. Richard Kahmann,
an orthopedist, as a retained medical expert.
Less than a week before
trial, defendants claimed they were surprised by the receipt of new evidence
from Riley's counsel. They filed a motion to exclude it, claiming Riley had not
disclosed this evidence during discovery.
The trial court ruled
the new evidence, which included CT scans and medical reports about Riley's
up-coming spinal fusion surgery, could be introduced at trial. But because it had been untimely disclosed to
defendants, they could designate a defense radiologist to review it and testify
at trial. It denied Riley's request to
designate her own radiologist. The
defense designated Dr. Neil Chafetz as their radiology expert.
Riley filed a motion to
exclude Chafetz from testifying at trial.
She claimed that because the defense had designated Kahmann as their
expert, they could not add Chafetz as a witness. Riley's counsel claimed Chafetz would duplicate
Kahmann's testimony. The court denied
this motion.
At trial, Riley
testified that on November 15, 2007,
she fell and hit her head after her foot "got caught" on the
sidewalk. On direct examination, her
counsel asked whether she first fell on her back or her head, she said, "I
really don't remember . . . . I thought I fell backwards on my side and
turned my head, and that's how I got cut.
But I really don't know . . . ." Her counsel asked, "Before November 15, 2007, did you ever
complain to a doctor about shooting pains before the fall?" Riley:
"No, I don't think I did. I don't remember if I did or
didn't." On cross-examination, she
said she had lived at the complex for three or four years and she had known
that there was a gap in that sidewalk.
The defense counsel asked her, "Do you recall whether or not you
stepped in it before your fall?"
Riley: "I don't know exactly what all happened or took place."
Dr. Gregersen testified
about his medical treatment of Riley. In
2005, she had fallen and experienced "right pleuritic chest
pain." In 2006, she took
medications for epilepsy. In September
2008, Riley complained about having radiating hip and leg pain. Gregersen opined that this problem was the
result of a "pinched nerve or inflammation of a nerve." In a June 2009 visit, Riley said she was
moving to Texas and would see a
neurologist there. She was feeling
better, but she had "low back pain."
Gregersen said Riley had
experienced a series of falls before and after the November 15, 2007 fall on defendants' property
due to seizures. On cross-examination, he said he could not
"with a reasonable degree of medical certainty" testify "which
of these, events, if any," caused Riley to experience the "radiating
hip pain."
Moelleken opined that
the November 15, 2007 fall
"probably" caused Riley to have to undergo spinal fusion
surgery. But it was possible that she
could have experienced a sudden deterioration requiring her to need that
surgery even had she not fallen on November
15, 2007.
Fiske said the November
15th fall was the event that caused a spinal lesion and aggravated nerve
compression. This resulted in the need
for her to have the spinal fusion surgery.
On cross-examination, he said that Riley had listed complaints about mid‑back
pain, low back pain and hip pain eight months before that fall.
In the defense case,
Chafetz testified that the November 15th incident was not the first time Riley
experienced "radicular pain."
She had "about a dozen complaints of low back pain prior to the
accident." There was "no way
to distinguish" between the many falls she had and the November 15th
incident. A review of Riley's
"vertebral body" showed evidence that her bone structure had
developed "degenerative changes" that were not "related to a
fall." There was a "pars
defect," or bone change deformity, which was caused by a natural
"process that takes many years."
Kahmann testified he
never had the opportunity to review the new CT scans. He said Riley's November 15th fall caused
only a "mild lumbar strain."
DISCUSSION
Riley notes that after
the deadline for designating expert witnesses, the trial court allowed the
defense to call a radiology expert to testify at trial. She claims it committed reversible error by
doing so and by denying her request to call her own radiology expert. We disagree.
In the pretrial motion,
the defense sought to exclude new medical records that Riley was seeking to
introduce at trial. These included CT
scans and reports from Dr. Kenneth Ressor who concluded that Riley would need
surgery. Defendants claimed: 1) this new evidence was "produced to
defendants less than a week before trial"; 2) the defense received it
"weeks after the discovery completion" deadline; 3) the "medical
providers who authored the records were never identified to defendants in
discovery"; 4) Riley represented that her "last treatment"
relating to the fall took place in June 2009, the new records were a surprise;
and 5) introducing the new evidence at trial would prejudice the defense which
had no time to review it and prepare for trial.
At
the September 8, 2010
hearing, defense counsel told the trial court that the discovery cut-off date
was August 9th, and that she did not receive Ressor's surgery recommendation
report until September 2nd. She first
learned about the CT scans "Thursday evening of last week." Riley's counsel gave a CT scan disk to its
expert, but not to defense counsel. This
denied defense counsel the opportunity conduct discovery. She said, "[W]e must have a chance to
. . . have a radiologist look at these new CT scans."
Riley's counsel claimed
that the new "radiological images . . . demonstrate the
damage" to Riley's spine and prove why Riley needs surgery. He said the jury should know that Riley will
be required to undergo a "two-level fusion" surgery, which entails
"installing hardware on both sides of her spine." The exclusion of these medical records would
deny Riley her "right" to prove "damages" and to be compensated
"for the surgery that she is going to have in October." He claimed there were justifiable reasons for
the late presentation of this evidence.
He said Riley "did things as quickly as she could."
But the trial court was
not persuaded. It viewed Riley's
counsel's effort to introduce this evidence at this time as a discovery
violation. It said, "I see this
just as game playing. We have discovery
cut-offs, expert designation cut-offs; they have not been complied
with." It noted that in 2009, Moelleken
opined that Riley would need surgery.
The court was concerned that Riley's counsel could use this new evidence
to support his conclusions, but the defense would not be able to refute it. It found the defense motion to be meritorious
and said, "I'm really leaning to just exclude it."
The trial court then
reconsidered. It granted a continuance
of trial and ruled Riley could introduce
the new medical evidence. Defendants
requested permission to designate an expert in radiology to "review the
new films" in Riley's medical records and to call that expert to
testify. The court granted that
request. Riley's counsel said,
"[M]ay we designate our own radiologist?" The court said, "No. I'll decide whether I want to issue an order
to show cause on sanctions. I don't want
any further experts . . . designated by [Riley]." The court re‑opened discovery for the
limited purpose of allowing the parties to depose the defense radiologist.
Riley claims the trial
court erred by finding that evidence about the need for surgery should have
been disclosed to the defense at an earlier date. She claims she did not know she needed
surgery until August 31, 2010,
which was shortly before trial. But in
her declaration, she said Moelleken "considered surgery as an option"
in 2009. Riley contends the court erred
by ruling that she unreasonably delayed in obtaining the CT scan evidence. Her counsel declared that Riley moved to Texas
and was unable to obtain a CT scan while she was in California. In her declaration, Riley said she was unable
to obtain a referral for "an orthopedic doctor in Texas"
until August 2, 2010. She suggests the court was required to accept
these facts.
But the short
declarations that Riley submitted were largely conclusory and did not contain
specific factual detail and documentation to explain the delay. At the pretrial hearing in response to a
question by the court, Riley's counsel agreed that Moelleken wanted Riley to
have CT scans in 2009. The trial judge
did not find the declarations submitted by Riley to be credible. The trial court "is the sole judge"
of credibility. (Church of the Merciful Saviour v. Volunteers of America, Inc.
(1960) 184 Cal.App.2d 851, 856; see also Fredrics
v. Paige (1994) 29 Cal.App.4th 1642, 1647.)
It had additional reasons to question Riley's credibility. It had previously sanctioned her for not
appearing at a mandatory settlement conference and it found the reasons she
gave for not attending were not credible.
Moreover, it is undisputed that the new evidence was produced after the
discovery completion deadline.
Riley contends that
allowing the defense to call a radiologist was an abuse of discretion. But the trial court was responding to a
defense objection to surprise evidence submitted beyond a discovery cut-off
date and shortly before trial. Parties
have a "right" to expect discovery will be completed within set time
limits before trial. (Code Civ. Proc., §
2024.020.) This protects litigants from
having to respond to "surprise" evidence. (Thoren
v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.) Courts may impose sanctions for noncompliance
with discovery rules that may include limiting the evidence a party may
present. (Code Civ. Proc.,
§§ 2023.010; 2023.030; McCoy v.
Gustafson (2009) 180 Cal.App.4th 56, 96-97; Sauer v. Superior Court
(1987) 195 Cal.App.3d 213, 228.)
Riley argues that the
scheduling of surgery was out of her hands and consequently the trial court
erred by finding the late submission of this evidence was a discovery
violation. But even if she is correct,
courts still have inherent authority to place conditions on the admissibility
of recently disclosed evidence to protect the opposing party from
surprise. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200
Cal.App.3d 272, 288.) Riley claims
admitting this evidence with the condition that the defense could call a
radiologist was error. She notes the
court granted permission for the defense to call a radiologist well after the
deadline to file expert witness lists had expired.
There are time limits
for designating experts and supplemental experts. (Code Civ. Proc., § 2034.280.) But a trial court has discretion to allow a
party to call an expert who was not listed on an expert designation list for
the purpose of responding to surprise evidence.
(Code Civ. Proc., §§ 2034.610; 2034.620; 2034.710;
1471, 1476; Gallo v. Peninsula Hospital
(1985) 164 Cal.App.3d 899, 904 ["The trial court has discretion to grant
defendant permission to call an expert witness not listed"].)
Here the trial court
concluded that excluding Riley's new evidence would be detrimental to her case,
but simply admitting it at this late date would be unfair to the defense. The court opted for a compromise. It allowed her to use the new medical records
at trial, but it evened the playing field by allowing the defense to call a
radiologist. Riley's counsel told the
court that the new evidence should be admitted to allow Riley to show the
causal connection between the fall and the need for the spinal fusion
surgery. But as Century 21 notes, the
court did not prevent her from presenting expert testimony on that issue. The court admitted her experts' testimony for
the jury to consider. Riley claims the
trial court created an unfair balance of experts against her. But three experts testified in the
plaintiff's case, two in the defense case.
Had the court granted her request to add a fourth expert in the
plaintiff's case, she would have had the benefit of being able to both
introduce her eleventh-hour evidence and add another expert.
Riley contends the trial
court had no authority to preclude her from calling her own expert in
radiology. But "[t]he court may, at
any time before or during the trial of an action, limit the number of expert
witnesses to be called by any party."
(Evid. Code, § 723.) This is
a matter within the trial court's sound discretion. (Redondo
Beach School Dist. v. Flodine
(1957) 153 Cal.App.2d 437, 449.) Here
the court knew at least two of her experts would testify about the spinal
fusion surgery. Riley suggests that
allowing Chafetz to testify gave the defense an unfair advantage in introducing
expert opinions on whether the new CT scans and recent surgery records proved
that the fall made surgery necessary.
But, as Century 21
notes, in the plaintiff's case, Moelleken and Fiske opined that: 1) the fall caused the need for the surgery,
and 2) the new evidence bolstered their opinions. At the pretrial hearing, Riley's counsel
stated his "fear is that [the defense is] . . . going to have
two witnesses testifying as to . . . what the myelogram CT scans
show." But that did not occur at
trial. Moelleken relied on the "CT
myelogram" evidence in reaching his conclusions. On the defense side, Chafetz had a different
opinion about the CT scan evidence. But
Kahmann testified he never had an opportunity to review the new "CT
myelogram" evidence. Moreover, for the
benefit of the plaintiff, the trial court ruled it would not allow the defense
to present cumulative expert testimony.
Basham
v. Babcock
The trial court denied
Riley's motion to exclude Chafetz as a defense radiology expert. Riley contends that by allowing the defense
to designate and call him to testify, the court committed reversible error
under Basham v. Babcock (1996) 44
Cal.App.4th 1717. We disagree.
In Basham, a case involving a surprise defense trial tactic, we stated
the general rule that "a party who has designated an expert to testify on
a particular subject may not replace that expert with one stated on a
supplemental list." (
exclude from evidence the expert opinion of any witness offered by any party
who has unreasonably failed to list the witness as an expert." (Id.
at p. 1723.)
In Basham, the defense in a personal injury action designated an
orthopedist to testify as an expert witness.
It later served a supplemental designation listing a radiologist. The plaintiff deposed the orthopedist who
said the automobile accident caused a flare up of the plaintiff's degenerative
disc disorder. During trial, the
plaintiff called the orthopedist as a rebuttal
witness, but he did not appear. The
defense counsel told the court that he decided only to call the radiologist and
he released the orthopedist who was then on vacation. This was a surprise to the plaintiff who had
expected the orthopedist to testify. The
defense had not given prior notice of its decision to switch witnesses. The plaintiff tried to locate and serve the
orthopedist with a subpoena, but attempts at service were unsuccessful. The trial court ruled that the orthopedist's
deposition testimony was not admissible.
The plaintiff did not depose the radiologist. The trial court did not allow the plaintiff
to mention any portion of the orthopedist's opinion to the jury.
After a defense verdict,
the plaintiff in Basham
appealed. We reversed stating,
"[A]t a minimum, [the plaintiff] should have been allowed to read to the
jury appropriate portions" of the orthopedist's deposition. (Basham
v. Babcock, supra, 44 Cal.App.4th
at p. 1724.) We were concerned with
the defense tactic of substituting designated expert witnesses at trial in a
manner that surprised the plaintiff. We
said, "It follows that a party who has designated an expert to testify on
a particular subject may not use a supplemental list to substitute
experts." (Id. at p. 1723.) The
defense "failure to call [the orthopedist] did not open the door for [the
radiologist] to testify on subjects for which [the orthopedist] was retained as
an expert witness." (
Century 21 claims
Riley's reliance on Basham is
misplaced because it did not involve either a plaintiff's attempt to introduce
surprise evidence or a judicially crafted condition as a remedy for its late
admission. It notes that, unlike
"orthopedist, and radiologist, were deposed and testified at trial"
and "the jury was not precluded from hearing contradictory evidence from
the [defense] expert witnesses."
Century 21 is correct. In
litigation tactic against the plaintiff.
Here, by contrast, the plaintiff surprised the defense and the trial
court properly fashioned a remedy to allow the tardy admission of Riley's
eleventh-hour evidence and a means for the defense to respond.
In Basham, prejudicial error was established because the record
disclosed the specific excluded evidence and its impact on the judgment. Here, by contrast, there is only a surfeit of
speculation. Riley suggests that had she called her own radiologist the result
would differ. But she does not cite to
facts showing who she would have called and the substance of the proposed testimony. The record does not contain a declaration
from her proposed radiologist to support an offer of proof or to establish a
factual basis for her argument on prejudice.
The mere possibility that there might have been another favorable
opinion if she retained another expert does not mandate reversal of the jury's
verdict. (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.)
Century 21 notes that
the jury may not have even relied on any of the expert opinions in this
case. It cites to Riley's medical
history which contains strong evidence
supporting the defense position on causation.
Riley had a significant history of falling because of seizures. Her propensity to fall was so great that her
treating doctor recommended she wear a "helmet." The medical records reflect that Riley had a
series of falling incidents which occurred both before and after the November
15, 2007 fall on defendants' property.
Gregersen testified that she had fallen in 2005 resulting in chest
pain. On August 15, 2006, Riley fell and
hit her head on a television set. On
September 1, 2006, she fell and hit her arm on a table. On September 20, 2006, she suffered a chest
injury due to a fall. There were three
other such incidents in June, July and August of 2008. On September 26, 2008, Riley complained that
she felt "radiating hip pain through [her] lower extremity."
Gregersen was asked,
"Can you, with a reasonable degree of medical certainty, tell us
as pain which is radiating through the right hip and lower
extremity?" He responded, "
shortly after her November 15th fall on defendants' property. These visits occurred on November 19th and
26th. On both occasions the medical
records reflect that Riley did not make any complaints about back pain. Riley also made no complaint about back pain
in her August 2008 visit.
Fiske testified that
eight months prior to the fall on defendants' property, Riley listed a series
of symptoms, including dizziness, headaches, migraines, neck pain, shoulder
pain, arm pain, mid-back pain, low back pain, chest pain, hip pain, and
tailbone pain. She also stated she had
"disc problems ten years ago."
Seven months before the November 15th fall, Riley had a high pain level
of seven in the lumbar back area. On the
day of the November 15th fall, the emergency medical records reflect that Riley
made no complaint that she had any "lower extremity problems."
This testimony from her
experts undermined her claims. Her third
expert, Moelleken, opined that the fall "probably" caused the need
for her surgery. But he also conceded
that "without this fall . . . it's possible that things suddenly
would have deteriorated to the point where she needed the fusion." The jury could reasonably infer that his
assessments were based on an incomplete medical history. He conceded that Riley was not "a great
historian" of her medical history.
She did not disclose the falls she had in June, July and August 2008;
she did, however, complain about pain from an additional fall in December
2008. Moelleken said, "[A]ny of
these falls could have caused back problems."
Moreover, the jury could
draw strong inferences favorable to the defense from Riley's conflicting trial
testimony. Riley could not respond to
critical questions about how she fell, how she landed, and whether she stepped
in the gap before the fall. Her
statements about her foot being caught were contradicted by her admissions that
she did not remember the events. She
claimed she did not fall as a result of a seizure, but this was undermined by
her hazy memory of the incident and her repeated inability to respond to
critical questions. At a critical point
during her testimony, she was asked, "[W]ere you looking on the ground as
you approached the area where you fell . . . ?" She responded, "I don't remember." Moreover, her credibility was severely
impeached by the defense. On direct she testified she had not previously sued
anyone because of a fall. On
cross-examination, she admitted she had sued Burger King. The defense successfully utilized prior
inconsistent statements she made during her deposition to undermine her trial
testimony. Statements she made to Fiske
about her medical condition before the fall contradicted the position she
advanced at trial. She has not shown
prejudicial error.
The judgment is
affirmed.
respondent.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
COFFEE, J.
PERREN, J.
Arthur
A. Garcia, Judge
Superior
Court County of Santa Barbara
______________________________
Steven R. Andrade,
Shannon E. Norquist for Plaintiff and Appellant.
Law Offices of Belofsky
& Hanker, LLP, David A. Belofsky, Oliver P. Lasley for Defendant and
Respondent.
