Moelleken v. Jones
Filed 10/1/13 Moelleken v. Jones 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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
ALAN MOELLEKEN,
M.D., et al.,
Plaintiffs and Appellants,
v.
THOMAS JONES,
M.D., et al.,
Defendant and Respondent.
2d Civil No. B242545
(Super. Ct. No. 1339785)
(Santa Barbara County)
Andrew
Moelleken, M.D., OSF Medical Group of California, Inc., and Carrillo Surgery
Center, Inc., appeal from the judgment entered following a jury verdict in
favor of respondents Santa Barbara Cottage Hospital, Cottage Health System,
Thomas H. Jones, M.D., E. Scott Conner, M.D., Richard Chung M.D., and Alois
Zauner, M.D. (respondents). Appellants
brought an antitrust action against respondents. Appellants claimed that respondents had
unlawfully agreed to restrain competition by excluding
including Dr. Moelleken, from performing spinal surgery on emergency and trauma
patients at Santa Barbara Cottage Hospital (the hospital).
Appellants
contend that the trial court erred in instructing the jury and denying their
motion for a new trial. The motion was
based on the following grounds: (1) the trial court had erroneously refused to
permit appellants to call rebuttal witnesses, (2) two jurors had committed prejudicial
misconduct during deliberations, and
(3) respondents' counsel had committed prejudicial misconduct during opening
statement. We affirm.
Factual and Procedural
Background
Trauma
centers are rated at levels I through IV.
Level I is the highest rating.
The hospital is a level II trauma center. Its emergency room is used by both the trauma
service and the emergency department. The
emergency department treats minor injuries, while the trauma service treats
serious injuries.
As a level II trauma center,
the hospital is required to have neurosurgeons and orthopedic surgeons on call
at all times. Neurosurgeons specialize
in surgical treatment of the brain and spine.
Some specially trained orthopedic surgeons perform spinal surgery. Dr. Moelleken is an orthopedic surgeon who
specializes in spinal surgery.
The hospital established
call panels, which are "list[s] of physicians . . . [who] are going to be
backup to the emergency room for unassigned patients," i.e., patients who
do not have their own doctor. Steven
Fellows, the hospital's Executive Vice President and Chief Operating Officer,
explained: "[W]hen you are on trauma call, you are also on emergency
department call. There's an obligation
to do both. [¶] When you are
on emergency department call, you make yourself available for trauma
consultations . . . ." Physicians
on the same call panel work together as a team.
Neurosurgeons on the
neurosurgery call panel treated emergency and trauma patients with spinal
problems. Orthopedic spine surgeons,
such as Dr. Moelleken, were not on call for these patients and therefore did
not treat them. Dr. Moelleken and Dr.
Kahmann, another orthopedic surgeon who specializes in spinal surgery, asked
the hospital to establish a separate spine call panel that would include both
orthopedic spine surgeons and neurosurgeons.
The spine call panel would treat emergency and trauma patients with
spinal problems. Dr. Moelleken testified:
"All I wanted was access to the ER [emergency room] and trauma patients."
Respondents Drs. Jones,
Conner, Chung, and Zauner were neurosurgeons on the neurosurgery call
panel. Drs. Jones, Conner, and Chung
formed a partnership: Neurosurgical Associates of Santa Barbara. In March 2004 Dr. Jones wrote a letter to the
hospital opposing the establishment of a spine call panel. Dr. Jones wrote, "We [i.e., Drs. Jones,
Conner and Chung] as a group strongly encourage the hospital to continue the
present system. If a spine call concept
is instituted without our agreement, we feel this will make our present trauma
call contract null and void, and we would then choose to renegotiate with the
hospital about the coverage we provide."
By the term "contract," Dr. Jones was referring to a
"Physicians Services Agreement . . . that includes both trauma care and
emergency room care."
In December 2007 Dr. Kahmann
wrote to the hospital's Medical Executive Committee: "The Orthopedic
department [of the hospital] voted unanimously to allow the appropriately
qualified and credentialed orthopedic spine surgeons to be able to participate
in the call panel of the ER [emergency room] and the Trauma Service in the care
of spine patients. . . . Today, the orthopedic spine surgeons are denied access
to care for these patients; all spine patients . . . are referred to the
neurosurgeon on call even though orthopedic spine surgeons are equally trained
and qualified to care for these problems.
This is not right. I strongly
believe that all appropriately qualified and credentialed spinal surgeons,
whether in the Neurosurgery or Orthopedics department, should have the ability
to participate in a call panel to care for these patients."
The
hospital formed a Spine Call Panel Task Force to study the issue. The voting members of the task force were
neither neurosurgeons nor orthopedic spine surgeons. Dr. Jones wrote an email to the chairman of
the task force, Dr. Gayou. Dr. Jones
stated: "We [i.e., Drs. Jones, Conner, and Chung], at this time, will
continue to take Neurosurgery call. We
have no interest in a separate 'Spine Call.'
The Medical Staff and Hospital can obviously make any concession that
they want to but if it affects our neurosurgical call obligations and
responsibilities we will, of course, reassess continuing the same call
relationships going forward." Dr.
Gayou told the other members of the task force that they should not consider
Dr. Jones's email in determining whether to recommend the establishment of a
spine call panel.
In November 2008 the seven
voting members of the task force unanimously recommended that a spine call
panel not be established. The hospital
implemented the recommendation.
In September 2009 appellants
filed a complaint against respondents.
The operative complaint is the first amended complaint (the complaint)
filed in August 2011. The complaint
consisted of five causes of action, two of which were dismissed. The surviving causes of action were the
first, second, and fourth. The first
cause of action alleged that, in violation of California's antitrust
Prof. Code, § 16700 et seq.), the neurosurgeon respondents (Drs. Jones, Conner,
Chung, and Zauner) had conspired to restrain competition by excluding Moelleken
and other orthopedic spine surgeons from performing "emergency spine trauma
surgery" at the hospital. The
second cause of action alleged that all of the respondents, including the
hospital, had participated in an identical conspiracy. The fourth cause of action alleged that
respondents had committed unfair business
law. (Bus. &
Prof. Code, § 17200 et seq.).
On the first and second
causes of action for violation of the antitrust law, the jury rendered a
special verdict in favor of respondents.
The trial court noted that the jury had heard "almost 7 weeks of
practically uninterrupted testimony."
The trial court, sitting in equity, found that respondents had not
engaged in unfair business practices as alleged in the fourth cause of action.
On
the antitrust causes of action, before trial appellants submitted a jury
instruction requiring them to prove that respondents had "entered into an
agreement to interfere with the competitive opportunity of the orthopedic
surgeons, including Dr. Moelleken, to perform spine surgeries on trauma
for "or." Appellants contend
that this modification was prejudicial error because it precluded them from
arguing that the jury "could . . . find the existence of an agreement that
covered the emergency department only."
" ' "The propriety
of jury instructions is a question of law that we review de novo.
[Citation.]" [Citation.]' [Citation.]
Where it is contended that the trial judge gave an erroneous instruction,
we view the evidence in the light most favorable to the claim of instructional
error. [Citations.]" (Mize-Kurzman
v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 845-846.)
"A party is entitled
upon request to . . . instructions on every theory of the case advanced by him
which is supported by substantial evidence." (Soule
v. General Motors Corp. (1994) 8
Cal.4th 548, 572.) Appellants' wrongly
assume that substantial evidence supports the existence of an agreement to
exclude orthopedic spine surgeons from performing surgeries on emergency
patients but not on trauma patients. The
evidence supports only an agreement to exclude orthopedic spine surgeons from
performing surgeries on both emergency and
trauma patients. This exclusion would be
achieved by refusing to establish a spine call panel consisting of
neurosurgeons and orthopedic spine surgeons who would treat emergency
surgeons would not be called to perform surgery on these patients. Dr. Moelleken testified that the refusal to
establish a spine call panel had financially damaged him because it had
"denied [him] access to patients in the emergency room and the trauma
service." Dr. Moelleken further
testified that his "claim" was that he was "being denied [access
to the] emergency room and trauma."
Dr. Moelleken was then asked:
"Now, Doctor, was this call schedule for the emergency room or for
trauma service or for both?" Dr.
Moelleken replied, "Well, they were one in the same."
Appellants did not advance a
trial theory of an agreement to exclude Dr. Moelleken from performing emergency
but not trauma spinal surgeries. In
opening statement, appellants counsel stated:
"The plaintiffs here must prove only that there was an agreement
between the neurosurgeons, on the one hand, and the hospital on the other to
exclude Dr. Moelleken and other orthopedic spine surgeons from performing spine
surgeries on trauma and emergency
patients at Santa Barbara Cottage Hospital." (Italics added.)
The trial court, therefore,
did not err when it modified the instruction that appellants had submitted
before trial. Even if it had erred, the
error would not compel a reversal.
"A judgment may not be reversed on the basis of instructional error
. . . unless there is a reasonable
probability that, in the absence of the error, a result more favorable to the
appealing party would have been reached.
[Citation.]" (
Cal.App.4th 1535, 1540.) If the unmodified
instruction had been given, it is not reasonably probable that the jury would
have found an agreement to exclude Dr. Moelleken from performing emergency but
not trauma spinal surgery or vice versa.
Appellants
argue that the trial court erroneously denied their motion for a new trial on
the ground of the court's refusal to permit them to call two rebuttal
witnesses: Drs. Amy Wickman and Richard Delamarter. Appellants allege: "The trial court's
refusal . . . constitutes an irregularity and error in the proceedings"
within the meaning of Code of Civil Procedure section 657, subdivision 1.
"We will not disturb
the trial court's determination of a motion for a new trial unless the court
has abused its discretion. [Citation.] When the court has denied a motion for a new
trial, however, we must determine whether the court abused its discretion by
examining the entire record and making an independent assessment of whether
there were grounds for granting the motion.
[Citation.]" (
130 Cal.App.4th 825, 832; accord, Santillan
v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 733.)
Dr. Wickman
Appellants'
counsel told the court that Dr. Wickham is a local orthopedic spine surgeon who
would testify "[t]hat she wants to do spine work, and that they [the
hospital] told her there was no spine panel." Dr. Wickham would also testify that she was
on a general orthopedic call panel for approximately five months and had only
one emergency spine patient. Respondents
objected that Dr. Wickham was not on the witness list and that her testimony
"should have been given in the case-in-chief." The trial court sustained the objection.
"Rebuttal evidence is generally defined as evidence
addressed to the evidence produced by the opposite party and does not include
mere cumulative evidence of the plaintiff's case in chief. [Citation.]" (Edgar
v. Workmen's Compensation Appeals Bd. (1966) 246 Cal.App.2d 660,
665.) "The law is established that
one who has the affirmative of an issue may not reserve a portion of his
evidence until an opposite party has exhausted his evidence . . . . If he does so the court may refuse to allow
him to introduce additional evidence on the subject after defendant rests. [Citation.]" (Bates
v. Newman (1953) 121 Cal.App.2d 800, 806.) "The trial court is vested with
discretion over the scope of rebuttal, and its ruling will not be disturbed on
appeal unless a clear abuse of discretion is shown. [Citation.]" (Ray v.
Jackson (1963) 219 Cal.App.2d 445, 454.)
The trial court did not
abuse its discretion in refusing to permit Dr. Wickham to testify as a rebuttal
witness. It reasonably concluded that
her testimony was cumulative and should have been offered during appellants'
case-in-chief. During opening statement,
appellants' counsel asserted: "We have a new spine surgeon who came to
town. Her name is Amy Wickman, and we
are going to hear about Amy. They put
her on the general orthopedic call and said, 'Nice, Amy, you will get your
spine cases through being on the general orthopedic call.' [¶] Baloney. She got nothing. Nothing.
Being on the general orthopedical call . . . isn't a substitute for
being [on] spine call." Dr.
Moelleken testified that Dr. Wickham had wanted to be on spine call, but the
hospital informed her that there was no spine call. Dr. Moelleken further testified that Dr.
Wickham was on general orthopedic call but had not treated any spine patients.
Dr. Delamarter
Dr.
Delamarter is an orthopedic spine surgeon who trained Dr. Moelleken during his
residency. Dr. Delamarter is the
co-director of the Spine Institute at Cedars-Sinai Hospital in Los
Angeles. Appellants' counsel told the
court that Dr. Delamarter would testify that he has worked at various hospitals
with spine call panels and that this arrangement has been successful. He would also testify that orthopedic spine
surgeons such as Dr. Moelleken are fully capable of performing complex spine
surgeries. Respondents objected that Dr.
Delamarter would present expert testimony, but he was not on appellants' expert
witness list. They also objected that
Dr. Delamarter's testimony would be cumulative of evidence introduced by
appellants in their case-in-chief. In
sustaining respondents' objection, the court noted that Dr. Delamarter was
"an undisclosed expert."
"The general rule, set
forth in Code of Civil Procedure section 2034.300, is that an undesignated
expert witness may not testify. An
exception to that rule is provided in Code of Civil Procedure section 2034.310,
which permits a party to call an undesignated expert witness to testify if the
expert has already been designated by another party, or if '[t]hat expert is
called as a witness to impeach the testimony of an expert witness offered by any
other party at the trial. This
impeachment may include testimony to the falsity or nonexistence of any fact
used as the foundation for any opinion by any other party's expert witness, but
may not include testimony that contradicts the opinion.' (Code Civ. Proc., § 2034.310, subds. (a)
& (b).) Trial courts strictly
construe the foundational fact requirement in Code of Civil Procedure section
2034.310 'so as to "prevent a party from offering a contrary opinion of
his expert under the guise of impeachment." [Citation.]'
[Citation.]" (
Griffin (2011) 200 Cal.App.4th 619, 641.)
Appellants sought to call
Dr. Delamarter to offer his expert opinion on spine call panels and the ability
of orthopedic spine surgeons to perform emergency and trauma spine
surgery. Appellants' offer of proof
"did not include any testimony designed to establish the falsity or
nonexistence of any fact" used as a foundation by respondents' expert
witnesses in forming their opinions. (
Griffin, supra, 200 Cal.App.4th
at p. 641.) "Because appellants'
proffered rebuttal expert testimony failed to
satisfy the requirements of Code of Civil Procedure section 2034.310, the trial
court properly exercised its discretion in precluding such
testimony." (Ibid.)
Juror Misconduct
Juror No. 5
Appellants
contend that juror no. 5 committed misconduct because she failed to disclose in
a questionnaire that she or someone close to her had had "a seriously
negative experience with a doctor."
Two jurors declared under penalty of perjury that, during deliberations,
juror no. 5 had said that doctors like Dr. Moelleken had mistreated members of
her immediate family. Appellants argue
that, based upon this misconduct, the trial court erred in not granting their
motion for a new trial.
" 'When a party seeks a
new trial based upon jury misconduct, a court must undertake a three-step
inquiry. The court must first determine
whether the affidavits supporting the motion are admissible. [Citation.]
(People v. Bryant (2011)
191 Cal.App.4th 1457, 1467.) "This,
like any issue of admissibility, we review for abuse of discretion. [Citation.]" (Barboni
v. Tuomi (2012) 210 Cal.App.4th 340, 345.) '[A party] may present evidence of [a
juror's] overt acts or statements that are objectively ascertainable by sight,
hearing, or the other senses.
[Citations.] No evidence may be
presented concerning the subjective reasoning processes of a juror . . . . [Citations.]" (People
v. Cissna (2010) 182 Cal.App.4th 1105, 1116.) "If the evidence is admissible, the
court must then consider whether the facts establish misconduct. [Citation.]
Finally, assuming misconduct,
the court must determine
whether the misconduct was prejudicial.
[Citations.]" (
On appeal: "We accept the trial court's credibility
determinations and findings on questions of historical fact if supported by
substantial evidence.' [Citation.]" (People
v. Collins (2010) 49 Cal.4th 175, 242.) Whether those facts constitute misconduct is
"a legal question we review independently."
fn. omitted.) A juror generally commits
misconduct when the juror's act "is a direct violation of the oaths,
duties, and admonitions imposed on actual or prospective jurors, such as when a
juror conceals bias on voir dire, consciously receives outside information,
discusses the case with nonjurors, or shares improper information with other
jurors . . . . [Citations.]" (In re
Hamilton (1999) 20 Cal.4th 273, 294.)
The trial court ruled that
the declarations of the two jurors were inadmissible. Even if the declarations were admissible, the
trial court concluded that "[m]uch of what has been said [in them] was not
persuasive . . . ." The court
continued: "Even if I were to
credit the substance of [the jurors'] declaration[s], the challenged conduct
and irregularities do not amount to misconduct [and] were not prejudicial . . .
."
We need not decide whether
the declarations of the two jurors were admissible. Assuming without deciding that they were
admissible, they were insufficient to establish misconduct by juror number
5. The questionnaire asked if she or someone
close to her had had a "seriously
negative experience with a doctor." (Italics added.) It is reasonable to infer that juror number 5
believed that her immediate family's negative experience was not
"serious." The jurors'
declarations did not disclose the facts underlying the alleged
mistreatment.
In any event, the statements
of the two jurors were contradicted by juror no. 5 and seven other jurors, who
declared that juror number 5 had never said, or that they had no recollection
of her saying, that doctors had mistreated her family. The trial court impliedly credited their
declarations, and its determination of credibility is binding on this
court. (People v. Collins, supra,
49 Cal.4th at p. 242.)
Juror No. 5 and the Jury
Foreperson
Appellants argue that juror
number 5 and the jury foreperson committed misconduct by "introduc[ing] 'facts' that were not in
evidence." Appellants' argument is
based on declarations by the same two jurors who said that juror number 5 had complained that doctors like Dr.
Moelleken had mistreated her immediate family.
The two jurors stated: (1) The foreperson and juror number 5 said
"that if we voted for Dr. Moelleken then other doctors would start suing
to get jobs at the hospitals. They both
kept saying that voting in favor of Dr. Moelleken would set a bad precedent,
and that we risked destroying the hospital and driving the neurosurgeons out of
work . . . ." (2) The foreperson
said a vote for Dr. Moelleken "would affect how the hospitals are run
nationally." (3) Juror no. 5
"said Dr. Moelleken is not married because of the way he is and the way he
acted."
The two jurors' statements
were contradicted by the declarations of eight jurors, including juror number 5
and the foreperson. The trial court
impliedly credited the declarations of these eight jurors, and its determination
of credibility is binding on this court.
(People v. Collins,
Appellants
contend that the trial court erroneously failed to grant their motion for a new
trial because the neurosurgeon respondents' counsel had committed misconduct
during opening statement. The misconduct
consisted of allegations that appellants wanted a $10,000,000 judgment, which
would "break" the neurosurgeons and force them "out of business."
Appellants forfeited this
claim of misconduct because they did not timely object or request that the
jurors be admonished to disregard counsel's allegations. "Generally a claim of
consideration on appeal unless the record shows a timely and proper objection
and a request that the jury be admonished.
[Citations.] . . . 'It is only in extreme cases that the court, when
acting promptly and speaking clearly and directly on the subject, cannot, by instructing
the jury to disregard such matters, correct the impropriety of the act of
counsel and remove any effect his conduct or remarks would otherwise
have.' [Citation.] In the absence of a timely objection the offended
party is deemed to have waived the claim of error through his participation in
the atmosphere which produced the claim of prejudice." (
Railway Co. (1964) 61 Cal.2d 602, 610.)
Appellants
did not object to counsel's remarks until the day after he had made them. This was not timely. "Even then [appellants] did not request
that the jury be admonished to disregard the alleged improper statements made
by counsel." (Horn v. Atchison, Topeka and Santa Fe Railway Co.,
We
recognize "that '[a] [party] will be excused from the necessity of either
a timely objection and/or a request for admonition if either would be futile.'
[Citation.]" (
Cal.App.4th 717, 727.) But here there is
no reason to believe that a timely objection would have been futile. When appellants' objected the following day,
the court stated: "[Appellants are] absolutely right. The neurosurgeons aren't going to go
broke." Nor is there reason to
believe that a timely admonition would have been ineffective to cure whatever
harm counsel's remarks had caused.
The
judgment is affirmed. Costs to
Respondent.
NOT TO BE PUBLISHED.
YEGAN,
Acting P.J.
We concur:
PERREN, J.
GRIMES, J.*
*Assigned by the Chief Justice pursuant to
article 6, section 6 of the California Constitution
>
Thomas
Anderle, Judge
Superior
Court County of Santa Barbara
______________________________
Blecher & Collins,
Maxwell M. Blecher and Majed Bakak.
Goldenberg, Lowenstein & Weatherwax, Davic W. Kesselman, for
Appellants.
Jones Day, Jeffrey A. Levee, Craig Stewart. Eris P. Enson and Kate Wallace. Griffith & Thornburgh, L. Donald Boden,
for Respondents.
name="_ftn1" title="">[1] In a footnote, appellants claim that this
finding was erroneous. We reject the
claim because "it is asserted perfunctorily on appeal in a
without meaningful legal analysis or a separate heading. (Bollay
v. California Office of Administrative Law (2011) 193 Cal.App.4th 103,
111; see also In re S.C. (2006) 138
Cal.App.4th 396, 408 ["To demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and citations to
facts in the record that support the claim of error"];
(1995) 34 Cal.App.4th 1826, 1830, fn. 4 ["The failure to head an argument
as required by California Rules of Court, rule [8.204(a)(1)(B)] constitutes a
waiver"]; People v. McElroy
(2005) 126 Cal.App.4th 874, 884, Fn. 3 ["To the
extent defendant complains the jury was not instructed on the meaning of 'unlawfully'
without a separate heading, defendant has waived any claim of error"].)
name="_ftn2" title="">[2] Section 657, subdivision 1 provides that
a new trial may be granted for "[i]rregularity in the proceedings of the
court, jury, or adverse party, or any order of the court or abuse of discretion
by which either party was prevented from having a fair trial."
