Opinion
G043985 Super. Ct. No. 30-2008-00108173
11-03-2011
BRIAN T. GEE, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP et al., Defendants and Respondents.
Sam Walker for Plaintiff and Appellant. Arnold & Porter, Lawrence A. Cox, Brian K. Condon; Reback, McAndrews, Kjar, Warford & Stockalper and Terrence J. Schafer for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Luis A. Rodriguez, Judge. Affirmed.
Sam Walker for Plaintiff and Appellant.
Arnold & Porter, Lawrence A. Cox, Brian K. Condon; Reback, McAndrews, Kjar, Warford & Stockalper and Terrence J. Schafer for Defendants and Respondents.
Plaintiff Brian T. Gee appeals from an order denying his petition to vacate an arbitration award in favor of defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals (collectively, Kaiser) and Joseph Chan, M.D. (Chan). Gee sought to vacate the award on his medical malpractice claim on the ground the arbitrator erroneously excluded material evidence. The arbitrator limited Gee to one expert on the standard of care because Gee failed to show the testimony of his two designated standard-of-care experts would not be duplicative. Gee argued this ruling destroyed his evidentiary presentation because he based his case on using both experts.
Gee's appeal is premature because an appeal lies from the judgment confirming the arbitration award, not from an order denying a petition to vacate the arbitration award, and the trial court did not confirm the arbitration award or enter judgment. Nonetheless, we exercise our discretion to hear Gee's appeal because the trial court should have confirmed the award and entered judgment when it denied Gee's petition. Dismissing the appeal would only unnecessarily delay resolution of this case and needlessly consume both judicial and private resources.
On the merits, we affirm the trial court's decision denying Gee's petition. Gee failed to show that the arbitrator's ruling limiting him to one expert substantially prejudiced his ability to fairly present his case by excluding material evidence. (See Code Civ. Proc., § 1286.2, subd. (a)(5); all statutory references are to the Code of Civil Procedure unless otherwise noted.) Accordingly, we affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
Kaiser admitted Gee to one of its hospitals and its doctors diagnosed him with severe pancreatitis. X-rays and CT scans revealed Gee also suffered from pleural effusion, or fluid in the chest cavity surrounding the lungs. Gee's attending physician asked Chan to evaluate whether Gee required a bedside thoracentesis to test for infection. To perform a thoracentesis, a physician inserts a needle into the patient's back between two ribs and into the chest cavity surrounding the lungs. The physician then draws a small amount of fluid from the cavity that is tested for infection. The procedure also may be used to drain fluid from the chest cavity.
Chan reviewed Gee's X-rays and CT scans to determine the volume and location of the fluid in Gee's chest, and physically examined Gee to confirm the fluid's location. The examination included a percussion test in which Chan repeatedly thumped on Gee's back at different locations and listened for changes in the sound. Based on the X-rays, CT scans, and physical examination, Chan selected the space between Gee's 10th and 11th ribs to perform the thoracentesis. Chan inserted a catheter needle at that location, but could not draw any more than two cubic centimeters of bloody fluid from Gee's chest.
Chan decided not to send the fluid he initially drew for testing. Instead, Chan performed a second thoracentesis to try and draw more fluid from a different location. In selecting the placement for the second thoracentesis, Chan did not review the X-rays or CT scans, nor did he use ultrasound or CT scan equipment to assist him in locating the fluid in Gee's chest. Rather, Chan inserted a new catheter needle at a location slightly higher and more lateral than the first insertion, but was unable to draw any fluid from Gee's chest.
In performing one or both of the thoracenteses, Chan lacerated Gee's spleen, which required Gee to undergo emergency surgery to remove his spleen. Surgeons performed three additional surgeries to close Gee's abdomen and later repair his abdominal wall. All told, Gee spent a total of 45 days in the hospital, including one week in intensive care.
Gee filed a medical malpractice action against Kaiser and Chan and the parties stipulated to submit Gee's claim to binding arbitration. Gee designated Drs. Richard W. Light and Nader Kamangar as his expert witnesses regarding the standard of care for performing a thoracentesis. Upon receiving Gee's expert designation, Kaiser and Chan requested that Gee withdraw one of these experts because they covered the same subject matter. Gee declined, explaining that Light and Kamangar's testimony would not be duplicative.
Light is a pulmonologist from Vanderbilt University School of Medicine whom Gee touted as the preeminent authority and author of the leading treatise on pleural diseases. During his videotaped deposition, Light acknowledged he last performed a thoracentesis approximately 25 years ago, but continued to instruct other physicians on pleural diseases. Light testified Chan breached the standard of care by (1) performing the first thoracentesis at a location too low on Gee's back and failing to use an ultrasound or a CT scan to confirm the location of the fluid; (2) failing to send the fluid sample from the first thoracentesis for testing before performing a second thoracentesis; and (3) performing the second thoracentesis at a location lateral to the first location, but not much higher on Gee's back. Light also testified the percussion method Chan used to determine the fluid's location during Gee's physical examination may fall within the standard of care, puncturing the spleen is a common complication for the thoracentesis procedure, and a small needle can puncture the spleen without causing complications.
Kamangar is a pulmonologist from Olive View-UCLA Medical Center who regularly performs thoracenteses and instructs medical students and fellows on how to perform the procedure. During his deposition, Kamangar testified Chan breached the standard of care by (1) performing both thoracenteses at locations too low on Gee's back; (2) using a large catheter needle rather than a smaller needle when the purpose for the thoracenteses was to draw a sample for testing rather than drain the fluid; (3) performing the second thoracentesis without testing the sample from the first thoracentesis; and (4) failing to use ultrasound or CT scan equipment to determine the location for the two thoracenteses. Finally, Kamangar opined that Chan caused Gee's injuries by lacerating his spleen during one or both of the procedures.
After deposing Light and Kamangar, Kaiser and Chan again requested that Gee withdraw one of his experts because their deposition testimony regarding the standard of care was duplicative. Gee refused and Kaiser and Chan moved in limine to exclude either Light or Kamangar from testifying at the arbitration hearing.
Gee opposed the motion, explaining Kamangar was his "primary expert," but "Dr. Light corroborates Dr. Kamangar's opinion about Dr. Chan's breach of the standard of care. Contrary to [Kaiser and Chan's] declaration, however, his testimony and Dr. Kamangar's are not duplicative. [Gee] offers [Light's] videotaped deposition as additional evidence that will be helpful to the fact finder." Gee further explained he intended to show Light's 42-minute videotaped deposition at the arbitration and then call Kamangar to testify in-person. Gee's written opposition failed to identify any specific differences between Light and Kamangar's testimony. At the hearing on the in limine motion, Gee argued the two physicians "would provide a different perspective on the issues" and "Dr. Kamangar would voice a strong opinion about the needle used by Dr. Chan, a point Dr. Light had not addressed."
The arbitrator granted the motion, explaining Gee failed to show how Light's and Kamangar's testimony regarding the standard of care would not be duplicative. The arbitrator's ruling allowed Gee to decide which expert he would call at the arbitration hearing. Gee elected to show Light's videotaped deposition rather than call Kamangar to testify in-person. Kaiser called its own expert to testify regarding the standard of care and Chan also testified he did not breach the standard of care.
After hearing all evidence, the arbitrator issued a decision in Kaiser and Chan's favor based on the findings that Gee failed to show Chan breached the standard of care and also failed to offer any evidence of causation. The arbitrator explained that he accepted Light's videotaped testimony as an expert, but found it "to be vague, contradictory and of little or no value in determining the issues." With respect to the standard of care, the arbitrator explained that all expert testimony acknowledged thoracentesis fell within the standard of care as an appropriate procedure to use in addressing Gee's pleural effusion, and Light's opinion that in retrospect another method for performing the thoracentesis may have been preferable did not establish Chan breached the standard of care.
Gee petitioned the trial court to vacate the arbitrator's decision on the ground the arbitrator substantially prejudiced Gee's rights by refusing to hear material evidence, namely, Kamangar's testimony. After reviewing the transcripts from Light's and Kamangar's depositions, the trial court issued an order denying Gee's petition. The trial court, however, did not confirm the arbitrator's decision and therefore did not enter judgment for Kaiser and Chan. Gee appealed from the "Order Denying Petition to Vacate Arbitration Award — CCP section 1294."
II
DISCUSSION
A. This Court Exercises Its Discretion to Decide Gee's Premature Appeal
A threshold issue we must address is whether this court has jurisdiction to consider Gee's appeal from the trial court's order denying his petition to vacate the arbitration award. "[T]he right of appeal is wholly statutory . . . ." (Powers v. City of Richmond (1995) 10 Cal.4th 85, 109.) Section 1294 authorizes an aggrieved party to appeal from an order dismissing a petition to vacate an arbitration award and also from a judgment confirming an arbitration award. (§ 1294, subds. (b) & (d).) Section 1294, however, does not authorize an appeal from an order denying a petition to vacate an arbitration award. (Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450, 1454 (Mid-Wilshire) [appeal dismissed because an order denying a motion to vacate an arbitration award is not an appealable order].)
Here, the trial court entered an order denying Gee's petition to vacate the arbitration award, but did not dismiss the petition or enter a judgment confirming the arbitration award. Accordingly, there is no appealable order or judgment supporting this appeal.
Our analysis, however, does not end there because the Code of Civil Procedure required the trial court to confirm the arbitration award and enter judgment once the court denied Gee's petition to vacate the award. (Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8-9 (Segreto).) Section 1286 states, "If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, . . . unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding." (§ 1286.)
Section 1286 therefore gave the trial court four options once Gee filed his petition to vacate: It could "'(1) confirm the award, (2) correct the award and confirm it as corrected, (3) vacate the award, or (4) dismiss the proceedings.' [Citation.]" (Segreto, supra, 176 Cal.App.4th at p. 8.) In other words, "'the court must confirm the award, unless it either vacates or corrects it. [Citation.]' [Citation.]" (Ibid., original italics.) Moreover, once a trial court confirms an arbitration award, section 1287.4 requires the court to enter judgment in conformity with the award. (Segreto, at p. 9; § 1287.4 ["If an award is confirmed, judgment shall be entered in conformity therewith"].)
This statutory framework explains why section 1294 does not authorize an appeal from an order denying a petition to vacate an arbitration award. If the trial court denies a petition to vacate, the court must confirm the award and enter judgment in conformity therewith. (Segreto, supra, 176 Cal.App.4th at p. 9.) An appeal lies from that judgment and the unsuccessful party on the petition to vacate may challenge that ruling when appealing from the judgment. (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
These authorities render Gee's appeal premature in the same way as an appeal from an order sustaining a demurrer without leave to amend or an order granting summary judgment. In both instances the appeal lies from the judgment entered after the order sustaining the demurrer or granting summary judgment, not from the underlying order. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396 ["An order sustaining a demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a dismissal on such an order"]; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 14, fn. 1 ["An appeal lies from the judgment, not from an order granting a summary judgment motion"].)
Because Gee prematurely appealed from the order denying his petition to vacate the arbitration award rather than the judgment confirming the award, we could dismiss the appeal for want of appellate jurisdiction. (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.) Doing so, however, would result only in a remand to the trial court for it to enter judgment followed by Gee filing a second appeal raising the same challenges presented on this appeal.
California Rules of Court, rule 8.104(d)(2) grants appellate courts the discretion to hear a premature appeal: "The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." (Cal. Rules of Court, rule 8.104(d)(2).) In numerous cases, appellate courts have exercised the discretion to hear premature appeals from orders sustaining demurrers or granting summary judgment by construing the orders as judgments. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527-528, fn. 1 [treating order sustaining demurrer as an appealable order]; Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7 [construing order granting summary judgment as incorporating appealable judgment].)
To avoid further delay and to conserve both judicial and private resources, we exercise our discretion under California Rules of Court, rule 8.104(d)(2) and construe the order denying Gee's petition to vacate the arbitrator's award as a judgment confirming the award. We proceed to decide Gee's appeal on the merits. B. Gee Failed to Establish a Basis for Vacating the Arbitration Award
1. Limited Judicial Review of an Arbitration Award
"[T]he Legislature has expressed a 'strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.' [Citations.]" (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) In furtherance of that policy, courts "'"indulge every intendment to give effect to such proceedings."'" (Ibid.)
"[I]t is the general rule that parties to a private arbitration impliedly agree that the arbitrator's decision will be both binding and final." (Moncharsh, supra, 3 Cal.4th at p. 9.) To carry out the parties' intent that arbitration provide a quick and final resolution to their dispute, judicial intervention in the arbitration process is kept to a minimum. "The arbitrator's decision should be the end, not the beginning, of the dispute." (Id. at p. 10.)
Consequently, the merits of the parties' dispute generally are not subject to judicial review. (Moncharsh, supra, 3 Cal.4th at p. 11.) Indeed, courts will not review an arbitrator's decision for errors of fact or law, including any errors in the arbitrator's reasoning and the sufficiency of the evidence supporting the arbitrator's award. (Ibid.) Even "an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review." (Id. at p. 33.) By voluntarily submitting their dispute to arbitration, the parties assume the risk the arbitrator may make a mistake. (Ibid.)
To ensure overall fairness in the arbitral process and to guard against serious errors in the award itself, the Legislature authorizes limited judicial review of arbitration awards. (Moncharsh, supra, 3 Cal.4th at p. 12.) Courts may vacate an arbitration award only on the grounds identified in section 1286.2. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 387.) Those grounds are (1) the prevailing party procured the award by corruption, fraud, or other undue means; (2) corruption existed in the arbitrator; (3) a neutral arbitrator's misconduct substantially prejudiced a party's rights; (4) the arbitrator exceeded his or her power and the award cannot be corrected without affecting its merits; (5) the arbitrator substantially prejudiced a party's rights by refusing to postpone the hearing despite good cause or by refusing to hear evidence material to the controversy; and (6) the arbitrator failed to make mandatory disclosures or failed to disqualify himself when required. (§ 1286.2, subd. (a).)
We review a trial court's decision to vacate or confirm an arbitration award de novo, "but apply the substantial evidence standard to the extent the trial court's ruling rests upon a determination of disputed factual issues." (Burlage v. Superior Court (2009) 178 Cal.App.4th 524, 529 (Burlage).)
2. Gee Failed to Establish the Arbitrator Substantially Prejudiced His Rights by Limiting Him to One Expert
Gee seeks to vacate the arbitration award based solely on the arbitrator's ruling limiting Gee to one expert on the standard of care for performing a thoracentesis. He cites section 1286.2, subdivision (a)(5), which requires a court to vacate an arbitration award when "[t]he rights of [a] party were substantially prejudiced by . . . the refusal of the arbitrators to hear evidence material to the controversy . . . ." (§ 1286.2, subd. (a)(5).)
A challenge under section 1286.2, subdivision (a)(5), "could be made in virtually every case where the arbitrator has excluded some evidence . . . . Plainly, this type of attack on the arbitrator's decision, if not properly limited, could swallow the rule that arbitration awards are generally not reviewable on the merits." (Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1110 (Schlesseinger).) Accordingly, courts interpret section 1286.2, subdivision (a)(5), "as a safety valve in private arbitration that permits a court to intercede when an arbitrator has prevented a party from fairly presenting its case." (Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439 (Hall).) It does not apply in every instance where an arbitrator erroneously excludes evidence. (Id. at p. 438.)
To vacate an arbitration award on this ground, a party must show the arbitrator's evidentiary ruling "substantially prejudiced [the] party's ability to present material evidence in support of its case." (Schlessinger, supra, 40 Cal.App.4th at p. 1110, original italics.) Unless the party establishes both substantial prejudice and materiality, the arbitration award must stand. (Hall, supra, 18 Cal.App.4th at p. 438.)
The reviewing court should analyze the prejudice caused by excluding the evidence before considering the evidence's materiality. (Hall, supra, 18 Cal.App.4th at p. 439.) Materiality often requires a court to review the arbitrator's reasoning for excluding the evidence and therefore would allow courts to review an arbitrator's reasoning in any case in which the losing party contends the arbitrator excluded material evidence. By first determining whether excluding the evidence substantially prejudiced a party's rights, materiality is considered only in those cases in which substantial prejudice is shown. (Id. at p. 438.) Analyzing the challenge in that sequence prevents a party from using section 1286.2, subdivision (a)(5), to avoid the general rule prohibiting appellate courts from reviewing an arbitrator's decision for errors of fact or law. (Hall, at pp. 438-439.)
In Hall, the plaintiffs sued two real estate agents who helped sell the plaintiffs' home. One agent acted as the listing agent while the second referred the plaintiffs to the first agent and provided assistance in marketing the property. The plaintiffs sought to hold the second agent vicariously liable for the first agent's malfeasance on the theory the agents formed a partnership when they agreed to share the commission for selling the plaintiffs' home. (Hall, supra, 18 Cal.App.4th at pp. 430-431.) At the arbitration hearing, the second agent presented no evidence addressing the plaintiffs' partnership theory, but later asked the arbitrator to reopen the hearing to allow the agent to present evidence on that issue. The arbitrator denied the request and made an award in the plaintiffs' favor, holding the second agent liable for the first agent's malfeasance based on the partnership theory. The trial court vacated the arbitration award based on the arbitrator's refusal to reopen the hearing. (Id. at pp. 431-432.)
The Court of Appeal reversed because the second agent failed to show the arbitrator's refusal to reopen the hearing substantially prejudiced his rights. Before denying the second agent's request to reopen the hearing, the arbitrator heard the agent's offer of proof and explained the additional evidence would not change his ruling. As the Hall court explained, "The arbitrator did not prevent [the second agent] from fairly presenting his defense. Instead, the arbitrator concluded that [the agent's] defense, even with the proffered evidence, lacked merit." (Hall, supra, 18 Cal.App.4th at p. 439.) Because the arbitrator's refusal to reopen the hearing did not substantially prejudice the second agent's ability to fairly present his case, the trial court erred in vacating the award, even assuming the excluded evidence was material. (Id. at pp. 438-439.)
In contrast, Burlage demonstrates that a party suffers substantial prejudice when an arbitrator excludes all relevant evidence on a material issue. In Burlage, the plaintiffs purchased a home from the defendant and later sued upon discovering their swimming pool and fence encroached on an adjacent country club. During the litigation, a title insurance company paid the country club approximately $11,000 for a lot-line adjustment that gave the plaintiffs clear title to the encroaching property. Nonetheless, the plaintiffs continued to seek damages for the encroachment based on the alleged diminution of their property's value and the cost of moving the pool and fence. The arbitrator granted the plaintiffs' in limine motion to exclude all evidence regarding the lot-line adjustment because the arbitrator concluded damages must be measured from the date escrow closed. The arbitrator ultimately awarded the plaintiffs approximately $1.5 million in damages. The trial court vacated the arbitrator's award and the Court of Appeal affirmed. (Burlage, supra, 178 Cal.App.4th at pp. 527-528.)
The Burlage court concluded the arbitrator substantially prejudiced the defendant's rights because the ruling excluding all evidence regarding the lot-line adjustment prevented the defendant from fairly presenting his defense, specifically, the defendant's ability to dispute the amount of the plaintiffs' damages. The ruling allowed the plaintiffs to offer expert testimony regarding the diminution in the value of their property and the cost to move the pool and fence, but barred the defendant from offering evidence showing the title company "fixed" the encroachment and therefore the plaintiffs did not suffer the damages they claimed. As the Burlage court explained, "it is self-evident [the arbitrator's] ruling excluding evidence that the title company solved the problem through a modest payment to the country club was more than a mere erroneous evidentiary ruling. . . . [¶] . . . [¶] Without this crucial evidence, the arbitration assumed the nature of a default hearing in which the [plaintiffs] were awarded $1.5 million in compensatory and punitive damages they may not have suffered." (Burlage, supra, 178 Cal.App.4th at p. 530.) The Burlage court also concluded the lot-line adjustment evidence was material: "What could be more material than evidence the problem was 'fixed' and there are no damages?" (Ibid.)
Here, the Hall case applies because Gee failed to show the arbitrator's ruling regarding his experts prevented him from fairly presenting his case. Gee contends the arbitrator denied him the opportunity to present his case because he planned to offer expert testimony by both Kamangar and Light. In Gee's view, "the arbitrator refused to hear half his case." Gee, however, does not properly frame the prejudice issue and fails to support his conclusion both experts were necessary to fairly present his case.
The issue is not whether the arbitrator prevented Gee from fairly presenting his case by refusing to hear Kamangar's testimony because the arbitrator never ruled Gee could not offer Kamangar's testimony. Instead, the arbitrator ruled Gee could not offer two pulmonology experts on the standard of care because Gee failed to show the two experts' testimony would not be duplicative. Accordingly, the issue is whether the arbitrator prevented Gee from fairly presenting his case by limiting Gee to one pulmonology expert on the standard of care for performing a thoracentesis.
The arbitrator allowed Gee to decide which expert he would use at the arbitration hearing and Gee chose to offer Light's videotaped deposition instead of calling Kamangar to testify in-person. Because the arbitrator did not exclude any particular expert, it is not enough for Gee to show he desired testimony from the expert who did not testify. Instead, Gee must show he needed Kamangar's and Light's testimony to fairly present his case.
Gee points to deposition testimony showing both Kamangar and Light opined that Chan breached the standard of care by (1) performing the two thoracenteses at locations too low on Gee's back; (2) failing to use ultrasound or CT scan equipment to locate the fluid in Gee's chest before performing the thoracenteses; and (3) failing to test the fluid sample from the first thoracentesis before performing the second. Gee also points to deposition testimony showing Kamangar could have provided the causation testimony the arbitrator found lacking and identified an additional breach of the standard of care that Light did not address.
Gee, however, provides no specific reason why he needed Light's testimony to fairly present his case. According to Gee, he chose to offer Light's testimony at the arbitration hearing because Light is "the world's preeminent authority on pleural diseases." Light's preeminence, however, does not establish Gee needed Light's testimony. The briefs Gee submitted to the arbitrator conceded Light's testimony merely "corroborate[d]" Kamangar's testimony and Kamangar was Gee's "primary expert." Light's testimony corroborating or adding weight to Kamangar's testimony may make Light's testimony helpful to Gee's case, but it does not make it necessary for Gee to fairly present his case.
Gee cites our decision in Burton v. Cruise (2010) 190 Cal.App.4th 939, for the proposition "a party can suffer prejudice from an act that frustrates his counsel's strategy for presenting evidence." In Burton we addressed whether a party's significant delay in seeking to compel arbitration prejudiced the opposition's case because the opposition selected its experts based on the assumption the case would be tried to a jury, not a panel of arbitrators. (Id. at pp. 949-951.) Here, we address whether an arbitrator's ruling limiting a party to one expert prejudiced the party's ability to fairly present his case. The type of prejudice caused to an opponent's case by delaying a petition to compel arbitration is not analogous to the prejudice caused by an arbitrator excluding evidence. Burton does not apply in this case.
Without showing he needed Light's testimony to fairly present his case, Gee cannot establish the arbitrator's ruling limiting him to one expert substantially prejudiced his rights. Gee's decision to offer testimony from the expert who did not express all the opinions he intended to rely on does not show the arbitrator substantially prejudiced Gee's rights by limiting him to one expert. The record shows Gee had an expert who could provide the necessary testimony, but Gee chose to have a different expert testify. We conclude the trial court properly denied Gee's petition to vacate the arbitration award.
Gee explains he offered two standard-of-care experts because Kaiser and Chan "presented two expert pulmonologists." Gee, however, acknowledges that one of these "expert pulmonologists" was Chan, that is, the party Gee alleged committed malpractice. The record does not reflect whether Chan offered any expert opinions regarding the standard of care or causation during the arbitration. The parties do not include their expert designations in the record either, but Chan's deposition transcript reveals his counsel informed Gee's counsel that "[Chan is] not a designated expert. He won't be who we designate to testify." Generally, a witness, including a party, may not offer expert testimony unless properly designated to do so. (§§ 2034.260, subd. (b)(1), 2034.210, 2034.300.) Accordingly, the record does not support Gee's contention he needed two standard-of-care experts because Kaiser and Chan had two standard-of-care experts. Moreover, an arbitration does not turn on the number of experts presented. Rather, when the facts are undisputed, the outcome turns on whose expert is more credible and persuasive.
Gee also argues this case is analogous to Burlage because both cases involved an arbitrator's ruling excluding evidence on a dispositive fact. That argument, however, misconstrues Burlage and the arbitrator's decision in this case. In Burlage, the court found the arbitrator substantially prejudiced the defendant's rights because the arbitrator prevented the defendant from offering any evidence to show the title company "fixed" the encroachment and the plaintiffs therefore did not suffer the damages they sought. (Burlage, supra, 178 Cal.App.4th at pp. 529-530.) As the Burlage court explained, the arbitrator's ruling prevented the defendant from disputing the plaintiffs' damages. (Id. at p. 531.) Here, the arbitrator did not prevent Gee from showing Chan breached the standard of care. The arbitrator allowed Gee to present expert testimony regarding the standard of care and did not limit the opinions Gee's expert could express. Rather, the arbitrator merely limited the number of experts Gee could present on the standard of care.
Gee cites three out-of-state cases for the proposition that an arbitration award must be vacated when the arbitrator excludes expert testimony the losing party sought to offer. (See Smaligo v. Fireman's Fund Ins. Co. (1968) 432 Pa. 133, 138; Bordonaro v. Merrill Lynch, Pierce, Fenner & Smith (2004) 156 Ohio App.3d 358, 367; Wilde v. O'Leary (2005) 374 N.J. Super. 582, 587.) These cases are readily distinguishable for the same reason as Burlage — that is, they involve arbitrator rulings that excluded all expert testimony a party sought to offer on an issue as opposed to an arbitrator's ruling merely limiting the number of experts a party offered covering the same issues. (Ibid.)
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Finally, Gee argues the arbitrator's ruling constituted substantial prejudice because the arbitrator found his expert's testimony unpersuasive. According to Gee, the arbitrator may have reached a different result if he had allowed Kamangar to testify. But the arbitrator did not bar Kamangar from testifying. Rather, Gee chose to offer Light's testimony instead of his primary expert, Kamangar. Whether the trier of fact finds a party's expert unpersuasive is a risk every party runs. It does not mean, however, the party has a right to present an additional expert to bolster the first expert's testimony.
Our conclusion Gee failed to establish substantial prejudice eliminates the need to address Gee's argument that no legal authority allowed the arbitrator to limit Gee to one standard-of-care expert. As stated above, Gee's failure to show the arbitrator's ruling substantially prejudiced his rights renders moot our consideration of whether the excluded evidence was material or whether the arbitrator erred in excluding the evidence. Finally, we note the arbitrator here could have, and perhaps should have, heard both Gee's experts because the additional testimony would not have significantly lengthened the proceedings or increased the costs. But Gee's argument fails to recognize arbitrators have "broad discretion in conducting the hearing and ruling on admission of evidence" and they are "not required to follow the rules of evidence and procedure." (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 164; § 1282.2, subds. (c) & (d).)
III
DISPOSITION
The judgment is affirmed. Kaiser and Chan shall recover their costs on appeal.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.