Opinion
B222570
09-09-2011
LINDA K. YEE, Plaintiff and Appellant, v. KAM Y. TSE, Defendant and Appellant.
Law Offices of Brian D. Witzer, Brian D. Witzer, Rowena J. Dizon; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiff and Appellant. Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza, Cassidy E. Cole; Schmid & Voiles, Susan H. Schmid and Bradley C. Clark for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GC037350)
APPEAL from a judgment of the Superior Court of Los Angeles County, C. Edward Simpson, Jr., Judge. Affirmed in part and reversed in part with directions.
Law Offices of Brian D. Witzer, Brian D. Witzer, Rowena J. Dizon; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiff and Appellant.
Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza, Cassidy E. Cole; Schmid & Voiles, Susan H. Schmid and Bradley C. Clark for Defendant and Appellant.
Defendant and appellant Kam Y. Tse, D.O., appeals from a judgment following a jury trial in favor of plaintiff and appellant Linda K. Yee in this medical malpractice action. Dr. Tse contends the trial court abused its discretion by: 1) allowing Yee to argue a different theory of causation at trial than she did in summary judgment proceedings; 2) excluding Yee's settlement with other defendants as impeachment evidence at trial; and 3) excluding evidence of payments for Yee's medical care through a private insurer's Medicare Advantage plan that was admissible under Civil Code section 3333.1. We conclude the trial court did not abuse its discretion in allowing Yee to change her theory of causation or excluding evidence of settlement. However, we conclude there was no evidence or authority to exclude evidence of payments for Yee's medical care that was admissible under section 3333.1. Therefore, we reverse the portion of the judgment awarding economic damages with directions to hold a new trial on the issue of past and future economic damages.
All further statutory references are to the Civil Code unless otherwise stated.
In Yee's cross-appeal, she contends that she was entitled to a jury determination of the gross amount of her future damages in order for the trial court to properly order periodic payments. Based on our directions to hold a new trial to determine the amount of Yee's economic damages, this issue is moot.
FACTS AND PROCEDURAL BACKGROUND
Yee's Medical Care
Seventy-seven-year-old Yee first visited Dr. Tse at the WellCare Clinic on March 1, 2005. Yee speaks Chinese, but does not speak English. Dr. Tse recorded a history of gout. He noted that Yee had an episode of gout in the past and suffered from allergic rhinitis. He prescribed Zyloprim, Claritin, and Tussin.
Yee returned to the WellCare Clinic on March 10, 2005, with flu-like symptoms and was seen by Dr. Po Long Lew. Dr. Lew diagnosed Yee as having bronchitis and prescribed Phenergan for Yee's cough. An exfoliative skin cream that was manufactured by Advanced Skin Care, Inc. (ASC), used to remove brown spots on Yee's face, was sold to Yee by Dr. Lew's wife on one of the two visits.
Dr. Tse saw Yee again on March 28, 2005, when she returned again with symptoms including a cough with colored phlegm, sore throat, and runny nose. He prescribed the antibiotic Ketek, Patanol for conjunctivitis, Tussin, and Zyrtec.
On March 29, 2005, Yee's daughter found Yee collapsed on the floor of her home. Paramedics took her to a hospital. Yee's face was swollen, and she had burns on her face and neck. She had blistering on her arms and legs, and areas of her skin were sloughing. She was in respiratory failure and anaphylactic shock. An emergency tracheotomy was performed. One of Yee's daughters provided a list of Yee's medications and skin treatments to the hospital, which included Ketek, but not Zyloprim.
Complaint
On June 20, 2006, Yee filed an action against Dr. Lew and ASC for negligence and product liability. The complaint alleged that Dr. Lew had prescribed antibiotics and furnished toxic skin creams to Yee on March 29, 2005, Yee was injured by "Advanced Clinique Tonor Skin Cream," and Dr. Lew and his staff failed to comply with professional standards during Yee's treatment and care, resulting in severe facial burns, distal esophageal, and Stevens Johnson Syndrome (SJS).
On January 26, 2007, Yee filed an amended complaint. She added Aventis Pharmaceuticals, Inc., as a defendant and alleged in the product liability cause of action that she was injured by "Advanced Clinique Tonor Skin Cream [and] Aventis Pharmaceuticals."
On May 2, 2007, Yee amended the complaint to additionally name Dr. Tse, Dr. Lew's wife, and an individual named Andrew Sun as Doe defendants. On May 14, 2007, Yee filed a third amended complaint alleging three causes of action. The first cause of action was for medical malpractice against Dr. Tse, based on his treatment and care of Yee on March 28, 2005. The complaint alleged that Dr. Tse prescribed the antibiotic Ketek and failed to comply with professional standards during the treatment and care of Yee. In addition to the injuries alleged previously, the complaint alleged Yee suffered liver failure. The product liability cause of action against Aventis alleged injury by the antibiotic Ketek. The complaint alleged that Aventis submitted fraudulent safety studies to obtain approval of the drug and knew Ketek could cause severe liver failure and other complications including SJS. The third cause of action was a product liability cause of action against the skin cream manufacturer, Dr. Lew's wife, and Sun, based on injury caused by a product labeled "Tri-Cream." Yee filed a fourth amended complaint in August 2007 that was substantially similar to the third amended complaint. Yee dismissed Dr. Lew, his wife, and Sun.
Aventis's Motion for Summary Judgment
In March 2008, Aventis filed a motion for summary judgment on the ground that Yee could not show Ketek was a cause of her injuries. Aventis submitted the declaration of Dr. Bruce Wintroub to establish the following facts. Yee's skin disorder was a potentially fatal reaction affecting the skin and mucous membranes. The disorder is labeled SJS if the patient's epidermal detachment is limited or toxic epidermal necrolysis (TEN) if the detachment is extensive (collectively SJS/TEN). A wide variety of commonly prescribed drugs are well-known to be linked to this condition, including anticonvulsants, barbiturates, sulphonamides, and anti-gout medications, including allopurinol. Zyloprim is an anti-gout medication with allopurinol as the active ingredient. No laboratory tests exist to confirm whether a patient's SJS/TEN is drug-induced. An adverse drug reaction is implicated, however, when a patient develops symptoms 7 to 21 days after the drug is first administered. Patients exhibit fever or flu-like symptoms, such as cough, sore throat, red and stinging eyes, followed one to three days later by cutaneous manifestations. A skin rash or lesions spread or blister, causing the top layer of the patient's skin to die and slough away. An adverse drug reaction is not indicated when the first administration of the drug is after the onset of cutaneous signs, or when symptoms erupt within 24 hours of first administering the drug, or when eruption begins more than 21 days after withdrawal of the drug therapy. Another well-known cause of the disorder is infection.
Aventis submitted Dr. Tse's March 1, 2005 notes stating Yee had a history of gout and prescribing Zyloprim once per day to treat gout symptoms. Aventis submitted pharmacy records showing Yee's prescription for Zyloprim was filled on March 7, 2005. Dr. Lew's notes from Yee's visit to the WellCare Clinic on March 10, 2005, stated that Zyloprim was one of the medications Yee was taking.
Aventis submitted Yee's deposition testimony and records from the medical center to show that she was taken to the medical center within 14 hours of first taking Ketek and 22 days after receiving allopurinol. The records stated Yee's distal esophageal stricture was secondary to SJS/TEN, and Yee was not diagnosed with liver failure. In Dr. Wintroub's opinion, the most likely cause of Yee's SJS/TEN was her use of allopurinol, or an underlying infectious process, or both, but not her use of Ketek.
Aventis also submitted the declaration of Dr. Steven Schenker. After reviewing Yee's medical records, Dr. Schenker opined that Yee did not experience liver failure. Dr. Tse filed a notice of joinder in Aventis's motion for summary judgment.
ASC's Motion for Summary Judgment
ASC also filed a motion for summary judgment in March 2008 on the ground that Yee could not show Tri-Cream was a cause or contributing factor to her injuries. ASC submitted the declaration of Dr. Marilyn Mehlmauer to establish the following facts. Tri-Cream contains the active ingredients hydroquinone and tretinoin. Hydroquinone is a depigmenting agent commonly used in topical skin creams to lighten skin tone. Tretinoin facilitates the effect of hydroquinone, resulting in mild skin flaking, and has been used in skin creams for more than 20 years. Neither of the active ingredients in Tri-Cream have a known connection with SJS/TEN. However, allopurinol is the drug most often associated with SJS/TEN. In Dr. Mehlmauer's opinion, Yee's SJS/TEN resulted from her use of allopurinol, not the active ingredients of the skin cream.
Test for Drug Sensitivity and Opposition to Motion for Summary Judgment
In May 2008, Yee's attorney sought to corroborate or refute the opinions of defendants' experts about allopurinol. He contacted a doctor in New York who specializes in SJS/TEN cases. The doctor in New York asked Dr. Manuela Neuman in Canada to perform a lymphocyte toxicity assay (LTA) test on Yee's blood to determine whether Yee was sensitive to Ketek and/or allopurinol. On May 28, 2008, Yee's attorney arranged for blood samples from Yee and one of her daughters to be sent to the doctor in New York, who forwarded them to Dr. Neuman for testing. On May 30, 2008, Dr. Neuman reported to the doctor in New York that LTA testing showed Yee has a high toxicity to allopurinol. Dr. Neuman's test confirmed that Yee had been exposed to allopurinol and was highly sensitive to it. Although Yee showed a higher toxicity to a higher dose of Ketek, Dr. Neuman could not assess whether Yee was hypersensitive to Ketek, because she did not have sufficient comparison data.
On June 12, 2008, Yee filed an opposition to Aventis's motion for summary judgment on the ground that triable issues of fact exist as to whether Ketek caused her injuries. Yee submitted the declaration of infectious disease specialist Dr. Howard Pitchon to establish the following. Antibiotics are the most prevalent drugs known to cause SJS/TEN. Erythromycin, a drug closely chemically related to Ketek, has long been associated with causing SJS/TEN. An LTA test can help to determine a drug's toxicity to cells which can cause SJS/TEN. Yee's medical records did not note any fever, which is an early general symptom of SJS/TEN, or bullous eruptions on her body, which is the hallmark sign of SJS/TEN. The appearance of fever and bullous eruptions after Yee began taking Ketek on March 28, 2005, was evidence of a temporal relationship between taking Ketek and manifesting symptoms. The rash in SJS/TEN cases can occur within 24 hours after taking a drug. No medical literature states that a drug can be excluded as a cause of SJS/TEN when it is taken less than 24 hours prior to the onset of SJS/TEN. Based on Dr. Pitchon's review of medical and scientific literature, Yee's medical records from the WellCare Medical Group, the medical center and the pharmacy, the patient information leaflet for Ketek, Dr. Wintroub's declaration and deposition testimony, the declaration of Dr. Schenker, and the deposition testimony of Yee and her two daughters, Dr. Pitchon opined to a reasonable medical probability that Ketek was a substantial factor and the most probable cause of Yee's SJS/TEN.
In Yee's opposition to the motion for summary judgment, under the heading "The Allopurinal Did Not Cause Ms. Yee's SJS/TEN," Yee stated the information from Dr. Pitchon's declaration. Dr. Pitchon noted several problems with Dr. Wintroub's theory that allopurinol caused Yee's SJS/TEN. The evidence did not establish that Yee took allopurinol in March 2005. Family members who brought Yee's medications to the hospital did not find allopurinol. Although Dr. Tse noted a history of gout, Yee's uric acid test on the day of her exam was normal, demonstrating that she was not bothered by gout at that time. The appearance of symptoms did not fit Dr. Wintroub's timeline, because even if Yee first took allopurinol as late as March 7, 2005, the symptoms of SJS/TEN did not appear within 21 days by March 28, 2005. Peer review literature states the risk for SJS/TEN from the use of allopurinol occurs with a dose of 200 milligrams or greater. Yee's dose was only 100 milligrams, which the peer review literature does not show a significant increase in the risk of SJS/TEN for that dosage. Based on these facts, Dr. Pitchon opined to a reasonable medical certainty that allopurinol did not cause Yee's SJS/TEN.
Trial Court Ruling
A hearing was held on June 26, 2008, on Aventis's motion for summary judgment and Dr. Tse's joinder in Aventis's motion. The trial court denied the motion for summary judgment and joinder on the grounds that a triable issue of fact existed whether the prescription of Ketek caused or contributed to Yee's injuries.
Opposition to ASC's Motion for Summary Judgment
On June 30, 2008, Yee opposed ASC's motion for summary judgment on the ground that triable issues of fact existed as to whether ASC's product caused any of Yee's injuries. Yee noted that ASC had submitted evidence as to whether its products caused SJS/TEN, but had not addressed any of Yee's other injuries. Yee submitted the declaration of Dr. Jack Thrasher to establish the following facts. The chemical ingredients in Tri-Cream are skin irritants which cause the outer layers of the skin to separate from the underlying layers. The exfoliation is accompanied by increased cell division in certain cells to replace the exfoliated layers. Cells undergoing cell division are more susceptible to toxins, leading to an increased rate of cell death. Dr. Thrasher opined that Yee's exposure to the ingredients in Tri-Cream caused injury to her epidermis and dermis through increased exfoliation and cell division, and increased her susceptibility to the adverse effects of the pharmaceutical(s) that led to the developments of SJS/TEN.
Yee submitted another declaration from Dr. Pitchon. In addition to the information from his previous declaration, Dr. Pitchon opined to a reasonable medical probability that the chemicals in Tri-Cream caused injury to Yee's dermis and epidermis, causing her face to be sensitized to chemicals and making her susceptible to an adverse cutaneous drug reaction such as SJS/TEN from a drug such as Ketek.
Trial Court Ruling on ASC's Motion for Summary Judgment and Settlement
After a hearing on July 15, 2008, the trial court found triable issues of facts existed as to whether Tri-Cream was defective and whether the alleged defect was a substantial factor in causing Yee's injuries. Therefore, the trial court denied ASC's motion for summary judgment. On December 30, 2008, Aventis and ASC filed a joint motion for determination of a good faith settlement, which the trial court granted.
Additional Pretrial Proceedings
Yee took the deposition of her former doctor, Dr. Eddie Lam, in January 2009. At Dr. Tse's deposition on February 12, 2009, Yee asked questions about his diagnosis of gout, prescription of Zyloprim, and knowledge of SJS/TEN as a side effect of Zyloprim. On February 23, 2009, Dr. Tse filed a motion in limine to preclude Yee from introducing evidence of a relationship between Zyloprim and SJS/TEN. He noted that the complaint did not refer to Zyloprim, and Yee's pleadings and expert testimony in opposition to the summary judgment motions stated that Zyloprim did not cause her SJS/TEN. Dr. Tse argued that Yee should be prevented from asserting that Zyloprim caused her injuries under the doctrine of judicial estoppel. He stated that he would be prejudiced if he had to defend against prescription of two separate medications.
Yee's attorney contacted Dr. Neuman in Canada to serve as an expert witness and learned of the LTA test result demonstrating that Yee is highly sensitive to allopurinol. In early March 2009, Dr. Tse took the depositions of Yee's experts Dr. Donald Nortman and Dr. Neuman.
Yee opposed Dr. Tse's motion in limine on the ground that Dr. Tse was aware of his potential liability for negligent prescription of allopurinol based on the evidence submitted in connection with Aventis's motion for summary judgment. In addition, she had consistently alleged that she suffered a drug-induced allergic reaction and Dr. Tse fell below the standard of care in treating her. Discovering allopurinol was another cause of Yee's SJS/TEN did not preclude her claim that Ketek was a contributing cause.
Yee filed a motion in limine to exclude reference to defendants who had been dismissed or entered into good faith settlements with Yee. Dr. Tse opposed this motion in limine on the ground that the settlement should be admissible to attack the credibility of Yee's expert witnesses who had changed their testimony after the settlement.
Yee filed a motion in limine to prevent Dr. Tse from arguing or introducing evidence that Ketek caused Yee's SJS/TEN. None of the parties' experts had opined that Ketek caused Yee's injuries. In addition, Yee requested no apportionment of fault be allocated to Aventis in the special verdict form given to the jury.
Dr. Tse's motion in limine to exclude evidence of allupurinol as a contributing factor was heard on March 17, 2009. The trial court found Yee's explanation for alleging in her complaint that Ketek caused her injuries was reasonable. The trial court allowed Yee to pursue the theory of causation that developed during the course of discovery. The trial court denied Dr. Tse's motion in limine, but continued the trial date to allow Dr. Tse to conduct additional discovery to alleviate any surprise.
Dr. Tse opposed Yee's motion in limine to exclude evidence of Ketek as the cause of Yee's SJS/TEN. Dr. Tse argued that he was entitled to cross-examine Dr. Nortman about the change in his testimony after the settlement. In reply, Yee argued: a settlement cannot be used as impeachment evidence to suggest an alternate cause of an injury; Dr. Nortman's opinions were not contradictory; and Dr. Tse was responsible in any event, because he prescribed both drugs.
Trial
A jury trial ended in a mistrial when the jury could not reach a verdict. A second jury trial commenced on July 9, 2009. At trial, Dr. Nortman testified that it was highly probable Yee's SJS/TEN resulted from taking allopurinol. He testified that Dr. Tse prescribed a member of a class of drugs that was associated with SJS/TEN, namely Ketek, and a drug specifically known to be the most highly associated drug with SJS/TEN, namely allopurinol.
During cross-examination, Dr. Nortman admitted that he signed a declaration stating under penalty of perjury that Ketek was the most likely cause of Yee's SJS/TEN. When he reviewed Yee's medical records from the WellCare Clinic to provide his opinion, he did not notice the prescription for Zyloprim. He admitted that he reviewed another declaration prepared for him in May or June 2008 that referred to allopurinol without any criticism. Dr. Nortman testified that it was not until Yee's attorney brought the Zyloprim prescription to his attention in late 2008 or early 2009 that he had stated Zyloprim was much more likely to have caused Yee's SJS/TEN than Ketek.
Dr. Tse asked the trial court to reconsider its ruling excluding evidence of settlement to explain the change in Dr. Nortman's testimony. The trial court concluded that the settlement evidence was not relevant and would confuse the jury. Therefore, the trial court excluded the evidence under Evidence Code section 352.
Dr. Neuman testified that Zyloprim caused Yee's injuries. Dr. Lam testified that he had never diagnosed Yee with gout and never prescribed Zyloprim in the eight years that he treated Yee before she went to the WellCare Clinic.
On July 31, 2009, the jury returned a verdict in favor of Yee, finding Dr. Tse was negligent in his medical care or treatment of her. The jury awarded $250,000 for pain and suffering. The jury found that Yee sustained past medical expenses of $3,591,755, and the present cash value of her future medical expenses was $2,073,250.
Dr. Tse filed a motion to apply the settlement that Yee received from Aventis and ASC to the amount of the jury's verdict, which Yee opposed. Ultimately, on December 11, 2009, the trial court granted the motion for offset and entered judgment in favor of Yee in the amount of $3,315,005.
DISCUSSION
I. Standard of Review
"The standard of review of any ruling by a trial court on the admissibility of evidence is abuse of discretion." (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.) "But discretion is always delimited by the statutes governing the particular issue." (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107.) "The proper interpretation of statutory language is a question of law which this court reviews de novo, independent of the trial court's ruling or reasoning." (Union Bank of California v. Superior Court (2004) 115 Cal.App.4th 484, 488.)
"'When construing a statutory scheme, our primary guiding principle is to ascertain the intent of the Legislature to effectuate the purpose of the law.' [Citation.] We 'attempt to give effect to statutes according to the usual, ordinary import of the language employed in framing them . . . and we construe the statutory language in its context, keeping in mind the nature and purpose of the statute in which they appear . . . .' [Citation.]" (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.)
II. Theory of Causation
Dr. Tse contends Yee should have been precluded from introducing evidence that Zyloprim caused her injuries under the doctrine of judicial estoppel. We find no abuse of discretion by the trial court.
"'"'Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] . . .'" [Citation.] The doctrine [most appropriately] 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."' [Citations.]" (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422 (MW Erectors).)
"'"'The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.]'"' [Citation.] Consistent with these purposes, numerous decisions have made clear that judicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary. [Citations.]" (MW Erectors, supra, 36 Cal.4th at pp. 422-423.)
In opposing the summary judgment motions in this case, Yee submitted evidence that would support finding Ketek and Tri-Cream caused or contributed to her injuries. Yee noted evidence suggesting she never took Zyloprim, or if she did, that it would not have caused injuries in the dose prescribed. The trial court found triable issues of fact existed as to whether Ketek caused or contributed to Yee's injuries. After settling with the product manufacturers and taking Dr. Lam's deposition, Yee switched theories to focus on allopurinol as the cause of her injuries. Because multiple products could have contributed to cause Yee's injuries, the theory that allopurinol caused or contributed to her injuries was not totally inconsistent with her earlier position that Ketek and Tri-Cream caused or contributed to her injuries.
The trial court did not abuse its discretion by allowing Yee to change her theory to fit the evidence that developed over the course of the litigation. Allowing Yee to pursue a different causation theory at trial did not harm Dr. Tse. As early as March 2008, Dr. Tse was aware from the motions for summary judgment that allopurinol he prescribed could have been a contributing factor in Yee's injuries. He joined in Aventis's motion for summary judgment on this theory. If Yee had agreed allopurinol was the more likely cause of her injuries, or if the motions for summary judgment had been granted, then the product liability causes of action would have been dismissed against Aventis and ASC. The medical malpractice action would have proceeded against Dr. Tse. Dr. Tse would have been liable for the full amount of damages caused by his negligent care and treatment of Yee related to his prescription of Zyloprim. Instead, the amount of the settlement was applied to reduce the judgment against him. In addition, the trial court allowed Dr. Tse additional time to conduct discovery and prepare a defense to the theory that allopurinol caused Yee's injuries. Under the circumstances of this case, we find no abuse of discretion in permitting Yee to change her theory as to which of the drugs that Dr. Tse prescribed caused her injuries.
III. Exclusion of Settlement
Dr. Tse also contends the trial court abused its discretion by excluding evidence of the settlement between Yee, Aventis, and ASC, preventing Dr. Tse from introducing the settlement to explain the change in Dr. Nortman's expert opinion. We find no abuse of discretion.
California Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
During cross-examination, Dr. Tse impeached Dr. Nortman's testimony on the issue of causation. Dr. Nortman admitted he had previously declared under penalty of perjury that Ketek caused Yee's injuries. He claimed not to have noticed the prescription for Zyloprim when he reviewed Yee's medical records, although Zyloprim was clearly noted in the records for two of the three visits to the WellCare Clinic. In fact, Dr. Nortman claimed not to have considered allopurinol as a cause of Yee's injuries until Yee's attorney suggested it in late 2008 or early 2009. However, he acknowledged that he reviewed a declaration prepared for him in May or June 2008 that discussed allopurinol.
Dr. Tse wanted to elicit additional testimony from Dr. Nortman that he was aware of Yee's settlement with Aventis and ASC and he changed his opinion as to causation after the settlement. However, it was clear from the offer of proof that Dr. Nortman would have testified that although he changed his opinion after the settlement, he did not change his opinion as a result of the settlement. Under the circumstances, the trial court did not abuse its discretion by excluding references to the settlement. Whether Ketek caused Yee's injuries was not an issue for the jury to decide, and evidence of the settlement could mislead the jury to consider the liability of the settling defendants. The trial court could reasonably rule that allowing evidence of the settlement for the purpose of impeachment would have consumed undue time, confused the issues, and misled the jury.
IV. Payments for Yee's Medical Care
Dr. Tse contends the trial court erred by excluding evidence of payments for Yee's medical care that was admissible under section 3333.1. We agree.
A. Additional Facts
Prior to trial, Yee filed a motion in limine to exclude evidence of payments made by Medi-Cal and Medicare through the Health Net Seniority Plus plan (HNSP). Dr. Tse listed the custodians of record for Medi-Cal, Health Net, and Medicare as trial witnesses. Yee represented to the trial court that at the time of her injury, she obtained all of her Medicare benefits through HNSP. Section 3333.1 permits medical malpractice defendants to introduce evidence of payments by specified collateral sources with the expectation that the jury will reduce the plaintiff's recovery by that amount, but courts have found that section 3333.1 does not apply to Medi-Cal payments. Yee argued that federal law similarly preempts section 3333.1 as applied to Medicare payments. In addition, Yee argued that the jury would need to know the usual rates for her past health care bills to understand the true cost of her future health care, "instead of being misled or confused by artificially reduced bills due to rates specially negotiated by collateral sources."
In his opposition to the motion in limine, Dr. Tse accepted Yee's representation that she was a Medicare beneficiary. However, he noted that Yee had not notified Medicare of her lawsuit, Health Net is a collateral source under section 3333.1, and Yee failed to provide evidence of a Medicare lien in response to discovery demands. Dr. Tse argued that evidence of Medicare payments is admissible in medical malpractice actions under section 3333.1. Dr. Tse noted that under Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 (Hanif), Yee's damages were limited to the amount that Medi-Cal and Medicare actually paid on her behalf for the services rendered. Dr. Tse stated that Yee's plan to present evidence of the private sector cost of her future medical care would be misleading. He argued that he should be able to present evidence of the amount Medicare paid and will pay for Yee's medical care as the reasonable and necessary cost of Yee's medical care.
A hearing was held on June 10, 2009. The trial court excluded evidence of collateral source payments by Medi-Cal and/or Medicare paid through HNSP on the grounds that section 3333.1 did not apply and the payments were not relevant to the reasonable value of Yee's past medical expenses. The trial court emphasized that there would be no prejudice to Dr. Tse, because he could bring a posttrial motion to reduce the judgment.
After the trial, Dr. Tse filed a motion to reduce the jury's award for past medical expenses of $3,591,755 to the amount that was actually paid by Yee and Medicare, or in the alternative, by Yee, Medicare, and Health Net. Dr. Tse submitted evidence that Yee paid $82,525.44 for her medical expenses and Health Net paid $570,903.31. Dr. Tse stated that Medicare paid monthly premiums to Health Net to provide Yee's medical care, and Yee had failed to produce evidence of any Medicare payments on her behalf. Dr. Tse requested an evidentiary hearing to establish the amount of Yee's actual past medical expenses, including the amount paid by Medicare on her behalf.
In support of the motion, Dr. Tse submitted a declaration from his attorney. Health Net's custodian of records had explained that Medicare pays Health Net a monthly premium to provide for Yee's medical care. Under this arrangement, the cost of Yee's care is borne by Health Net. Health Net is not asserting and does not plan to assert any liens for the payments made for Yee's health care. Dr. Tse does not know the amount paid by Medicare to Health Net, because Yee has not provided the information and has not executed an authorization allowing the release of the information.
On August 25, 2009, the trial court ordered Yee to provide signed authorizations allowing Medicare and Medi-Cal to release information to Dr. Tse showing the amounts paid for Yee's medical services. On September 8, 2009, Yee opposed the motion for reduction of past medical expenses. Yee argued that Dr. Tse failed to submit competent evidence establishing the amounts that Yee actually paid or incurred. In Dr. Tse's reply, he argued that Yee could not complain about a lack of evidence of payments made by Health Net, when the trial court precluded Dr. Tse from introducing Health Net's payments by granting Yee's motion in limine.
The trial court reviewed the record to prepare a tentative ruling reducing the award of past medical damages from $3,591,755 to $679,406.34. At a hearing on October 10, 2009, Yee argued that the trial court's calculations relied on unauthenticated evidence, and Dr. Tse had not met the burden of proof. The trial court agreed Dr. Tse had the burden to prove the motion to reduce the award of damages and set a new hearing date.
On November 3 and 4, 2009, the trial court heard detailed testimony from multiple witnesses concerning the bills and payments for Yee's medical care. Dr. Tse's attorney asserted that Yee had private insurance through Health Net. The trial court stated, "Medicare and Medi[-]Cal are not really considered to be private insurance in the traditional way in which the word private is used. . . . I think we need to clear up in this case what it was that Ms. Yee had." Yee's attorney acknowledged, "[I]t's always been a source of confusion."
Marcy Armin, who is the custodian of records for Health Net, testified that Yee is a member of HNSP, which is the name of Health Net's Medicare Advantage program. Health Net has a contract with Medicare. The member assigns her Medicare benefits to Health Net. Medicare pays Health Net a set amount per month, known as the "capitation amount." In the medical industry, the capitation amount is a monthly amount per patient. Armin did not know the capitation amount received from Medicare for Yee.
Upon enrolling in HNSP, the member selects a medical group. Health Net pays a capitation amount to the medical group. The medical group is responsible for providing medical services and contracting with specialists to provide services. Bills for the member's care outside the medical group are submitted to the medical group for payment. If they are submitted to Health Net, then Health Net forwards the bills to the medical group. The medical group uses the capitation amount to pay the member's bills.
A representative from one of the hospitals that provided services to Yee explained that under the hospital's agreement with Health Net, the hospital could not bill Yee for the difference between the amount billed by the hospital of $47,000 and the amount paid by Health Net of $19,000.
The parties stipulated that Medi-Cal paid $25,978.45 for Yee's medical care, which was the amount of Medi-Cal's final lien on any recovery. Dr. Tse introduced a document from Medicare stating that Medicare had not paid any amount on claims related to Yee's care. Yee refused to stipulate as to the amount paid by Medicare on behalf of Yee. Yee's attorney stated, "Whether or not Health Net is paying on behalf of Medicare[,] or Medicare is not paying, it's a subtle issue, but we're not stipulating for that purpose." Yee's attorney noted he had only recently received the Medicare document and had not reached any decisions about it. The trial court took the matter under submission. The trial court intended to calculate the amount of Yee's medical expenses paid by Yee, Health Net, and other sources. The total amount would be the judgment entered in favor of Yee for past due medical expenses.
On November 23, 2009, Yee filed her attorney's declaration informing the trial court that the Fourth Appellate District had issued an opinion in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686 (Howell),review granted March 10, 2010 (S179115), holding that posttrial motions to reduce damages under Hanif are improper. In addition, Yee's attorney declared that one of Yee's medical providers had requested payment on her outstanding medical bill upon learning that Yee obtained a settlement in her legal action. He expected to continue to receive requests for payments from Yee's medical providers with unpaid balances. He opined that despite the statements that providers made pursuant to the hearing that they have "no present plans" to collect unpaid balances, various providers would attempt to collect funds from Yee or her attorney's office based on information that Yee has recovered in her legal action. In his opinion, the providers were legally entitled to pursue collection efforts from Yee.
After a hearing on November 30, 2009, at which Dr. Tse argued Howell should not be applied in the instant case, the trial court took the matter under submission. On December 1, 2009, the trial court issued an order denying Dr. Tse's motion to reduce the jury's award for past economic damages based on the holding in Howell. The trial court granted Dr. Tse's motion to offset the verdict by the amount of the settlement. The trial court noted that extensive evidentiary hearings had been conducted concerning payments for past medical expenses. The trial court included an accounting of the payment evidence as part of the ruling, in the event the payments were relevant to future proceedings. On December 11, 2009, the trial court entered judgment in favor of Yee in the total amount of $3,315,005.
On December 28, 2009, Dr. Tse filed a motion for new trial on grounds including accident or surprise, newly discovered evidence, excessive damages, insufficiency of the evidence, and error in law. Dr. Tse argued that the Howell opinion concerned private insurance and did not apply to government benefits in a medical malpractice case. However, Dr. Tse argued, if Yee's medical care was paid through private insurance and not Medicare benefits, then it was error to grant the motion in limine excluding the payment evidence at trial under section 3333.1. Dr. Tse also argued that the amount of damages should be reduced based on the new evidence presented during the posttrial hearing that one provider's bills for $1,585.59 and $888.86 had been misread and miscalculated by Yee's expert during trial as $158,559 and $88,886. In addition, Dr. Tse argued that Yee's expert should not have been permitted to testify as to the reasonableness of Yee's medical bills when Dr. Tse was prevented from presenting testimony as to the amounts that Yee's medical providers accepted as payment in full. Yee opposed the motion for new trial.
A hearing was held on February 2, 2010. The trial court noted that a petition for review had been filed in Howell. The trial court calculated that "if the judgment was reduced to the actual amount of medical payments made by Health Net, the plaintiff or anyone else on the plaintiff's behalf, the amounts would be roughly $785,000." Dr. Tse reiterated his arguments. Yee's attorney stated that all the parties agreed "this is not a Medicare case. [¶] That was demonstrated through Medicare documentation, through lengthy efforts that, subpoenaing Medicare for proof of Medicare payments, and then I believe through declarations from Medicare that this was not something that Medicare had made any payments whatsoever on. [¶] Under the circumstances, those circumstances, it's not a Medicare case. . . ." The trial court stated, "This may be, this is a Medicare hybrid, as I recall the testimony was is that the plaintiff assigned to Health Net all of her benefits under Medicare. Health Net provided her medical coverage on what they call a capitated basis. [¶] I'll let some other court decipher what all that means, but I think it's fairly clear at least to me, that this is not a traditional private insurance case like Blue Cross or Blue Shield Kaiser, but it's a hybrid of some type. [¶] I'm just going to have to remain consistent in the rulings that I've made in the latter part of the trial." The trial court denied the motion for new trial. Dr. Tse filed a timely notice of appeal from the judgment.
On March 10, 2010, our Supreme Court granted review in Howell. On August 18, 2011, the Supreme Court held in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 , that an injured plaintiff may not recovered as economic damages more than the amounts paid or owed at the time of trial by the plaintiff or the plaintiff's private insurer for the medical services received. (Id. at p. ___ [2011 D.A.R. 12533, 12541].) If a medical care provider accepted less than the full amount of the bill for the plaintiff's care as full payment pursuant to an agreement with the plaintiff's private insurer, evidence of the reduced amount "is relevant to prove the plaintiff's damages for past medical expenses and, assuming it satisfies other rules of evidence, is admissible at trial. Evidence that such payments were made in whole or in part by an insurer remains, however, generally inadmissible under the evidentiary aspect of the collateral source rule. [Citation.] Where the provider has, by prior agreement, accepted less than a billed amount as full payment, evidence of the full billed amount is not itself relevant on the issue of past medical expenses." (Ibid.) "Where a trial jury has heard evidence of the amount accepted as full payment by the medical provider but has awarded a greater sum as damages for past medical expenses, the defendant may move for a new trial on grounds of excessive damages. (Code Civ. Proc., § 657, subd. 5.) A nonstatutory 'Hanif motion' is unnecessary. The trial court, if it grants the new trial motion, may permit the plaintiff to choose between accepting reduced damages or undertaking a new trial. (Id., § 662.5, subd. (b).)" (Howell v. Hamilton Meats & Provisions, Inc., supra, at p. _____ [2011 D.A.R. 12533, 12541].) The Supreme Court noted that its holding did not abrogate or modify the collateral source rule applicable in California, nor did it alter the operation of Civil Code section 3333.1. (Ibid.)
In general, under the collateral source rule, an injured party's damages from a tortfeasor are not reduced by the amount of any payments that the injured party receives from an independent source. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6.) This rule encourages people to obtain insurance. (Id. at p. 10.) "[A] person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift." (Id. at pp. 9-10.) "Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance." (Id. at p. 10.) A closely related evidentiary rule prohibits the admission of evidence of compensation from a collateral source. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 10.)
However, in response to a medical malpractice insurance crisis in California, the Legislature adopted the Medical Injury Compensation Reform Act of 1975 (MICRA), including section 3333.1. (Barme v. Wood (1984) 37 Cal.3d 174, 178-179.) "[T]he rising cost of medical malpractice insurance was posing serious problems for the health care system in California, threatening to curtail the availability of medical care in some parts of the state and creating the very real possibility that many doctors would practice without insurance, leaving patients who might be injured by such doctors with the prospect of uncollectible judgments." (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 158 (Fein).)
Section 3333.1 alters the collateral source rule in medical malpractice cases. A medical malpractice defendant may introduce evidence of "any amount payable as a benefit to the plaintiff as a result of the injury pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services." (§ 3333.1, subd. (a).) If the medical malpractice defendant introduces evidence of the plaintiff's collateral source benefits, the plaintiff may introduce evidence of any payments made to obtain the benefits. (Ibid.)
Section 3333.1 provides: "(a) In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence. [¶] (b) No source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant."
When evidence of collateral benefits is introduced pursuant to section 3333.1, subdivision (a), the source of the collateral benefits is not allowed to recover any amount from the plaintiff and is not subrogated to the plaintiff's rights against the defendant. (§ 3333.1, subd. (b).) The trier of fact is not required to deduct collateral source benefits from damages, but section 3333.1 allows evidence of collateral benefits to be introduced at trial and the trier of fact may determine how the evidence should affect damages. (Fein, supra, 38 Cal.3d at pp. 164-165 & fn. 21.)
Section 3333.1 has been found not to apply, however, to payments made on behalf of an injured party by Medi-Cal (Welf. & Inst. Code, § 14000 et seq.). (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 506.) In Brown v. Stewart (1982) 129 Cal.App.3d 331, 341, the court concluded that applying section 3333.1 to Medicaid payments for medical services would create a direct conflict with provisions of federal law that require states to seek reimbursement of Medicaid payments from third party tortfeasors.
C. Medicare
The Medicare Act (42 U.S.C. § 1395 et seq.) is part of the Social Security Act, establishing a federally subsidized health insurance program administered by the Department of Health and Human Services (HHS). (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 416 (McCall))"Part A of Medicare, 42 United States Code section 1395c et seq., covers the cost of hospitalization and related expenses that are 'reasonable and necessary' for the diagnosis or treatment of illness or injury. (42 U.S.C. § 1395y(a)(1)(A).) Part B of Medicare (42 U.S.C. § 1395j et seq.) establishes a voluntary supplementary medical insurance program for Medicare-eligible individuals and certain other persons over age 65, covering specified medical services, devices, and equipment. (See 42 U.S.C. §§ 1395k, 1395o.)" (McCall, supra, at p. 416.)
"Beneficiaries who are automatically entitled to Medicare Part A receive it without paying any monthly premium. Beneficiaries who are not automatically entitled to Part A but who voluntarily enroll in it must pay a monthly premium. . . . [¶] Unlike Part A, all Medicare beneficiaries must pay a monthly premium for Part B, unless they are entitled to Medi-Cal or a Medicare Savings Program that will pay their Part B premium for them." (Cal. Elder Law Resources, Benefits, and Planning (Cont.Ed.Bar 2010) Introduction to Medicare, § 7.12, p. 404.)
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"As first enacted, Medicare was the primary payer for medical services supplied to a beneficiary, even when such services were covered by other insurance such as an employer group health plan or liability insurance." (Zinman v. Shalala (1995) 67 F.3d 841, 843 (Zinman).)Medical providers who contract with Medicare agree to accept a predetermined flat rate based on a diagnosis-related classification assigned to a beneficiary's hospital stay at the time of admission (see 42 U.S.C. §§ 1395ww; 42 C.F.R. pt. 412) and not to charge any individual for items or services entitled to be paid under the Medicare provisions. (42 U.S.C. § 1395cc(a)(1)(A).) If a provider's actual costs are less than the amount received from Medicare, the provider keeps the difference; however, if a provider's actual costs are greater, the provider must absorb the loss.
"A Medicare 'assignment' is an agreement by which the beneficiary assigns payment of Medicare benefits to the health care provider and, in return, the provider accepts as payment in full the amount Medicare approves for Medicare-covered services. 42 USC §§ 1395cc, 1395u(b)(3)(B); 42 CFR § 424.55. . . . When a service is provided 'on assignment,' Medicare payments go directly to the provider. 42 USC §§ 1395cc, 1395u(b)(3); 42 CFR § 424.55(b)." (Cal. Elder Law Resources, Benefits, and Planning (Cont.Ed.Bar 2010) Introduction to Medicare, § 7.58, pp. 438-439.)
In 1980, Congress responded to escalating Medicare costs by enacting the Medicare Secondary Payer provisions of the Social Security Act (42 U.S.C. § 1395 et seq.) (MSP provisions), requiring that Medicare serve as the secondary payer in certain situations. (42 U.S.C. § 1395y(b).) (Zinman, supra, 67 F.3d at p. 843.) The MSP provisions prohibit Medicare from making payment when "payment has been made, or can reasonably be expected to be made" by a group health plan, workers' compensation plan, an automobile or liability insurance plan, or a no-fault insurance plan. (42 U.S.C. § 1395y(b)(2)(A).) However, Medicare will make a conditional payment as a secondary payer when payment by an insurer had not been made or cannot reasonably be expected to be made promptly. (42 U.S.C. § 1395y(b)(2)(B) (1996); 42 C.F.R. § 411.53(a).) Medicare's payment is "conditioned on reimbursement to the appropriate Trust Fund in accordance with the succeeding provisions of this subsection." (42 U.S.C. § 1395y(b)(2)(B)(i).)
Under the MSP provisions, the federal government is subrogated to the rights of individuals and other entities. (42 U.S.C. § 1395y(b)(1).) "This right of subrogation gives HHS the right to be put in the legal position of the beneficiary in order to recover from third parties who are legally responsible to the beneficiary for a loss." (Zinman, supra, 67 F.3d at p. 844.) In addition, HHS has "an independent right of recovery against any entity that is responsible for payment of or that has received payment for Medicare-related items or services, including the beneficiary herself. [(42 U.S.C. § 1395y(b)(2)(B)(ii).)] This independent right of recovery is separate and distinct from HHS's right of subrogation [citations] . . . ." (Zinman, supra, at pp. 844-845.)
If a Medicare conditional payment is made, Medicare is entitled to recover as follows: "(1) If it is not necessary for [Medicare] to take legal action to recover, [Medicare] recovers the lesser of the following: [¶] (i) The amount of the Medicare primary payment. [¶] (ii) The full primary payment amount that the primary payer is obligated to pay under this part without regard to any payment, other than a full primary payment that the primary payer has paid or will make, or, in the case of a primary payment recipient, the amount of the primary payment. [¶] (2) If it is necessary for [Medicare] to take legal action to recover from the primary payer, [Medicare] may recover twice the amount specified in paragraph (c)(1)(i) of this section." (42 C.F.R. § 411.24(c).)
"In 1997, Congress enacted part C of the Medicare Act authorizing the Centers for Medicare & Medicaid Services (CMS), an agency within HHS, to contract with private managed health care organizations to provide individuals with the Medicare benefits they would be entitled to receive under part A (hospital services) and part B (outpatient services) of the Act. (42 U.S.C. § 1395w-21 et seq.)" (Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 448-449 (Cotton).) Part C was initially known as Medicare+Choice, but was later renamed Medicare Advantage (MA). (Id. at p. 449.)
MA allows a person who is eligible for Medicare to enroll in a private insurance plan, including a health maintenance organization (HMO). (Yarick v. PacifiCare of California (2009) 179 Cal.App.4th 1158, 1163 (Yarick).) Under MA, an "MA organization" contracts with Medicare to provide specified health services for Medicare beneficiaries in exchange for a monthly payment from Medicare for each person enrolled in the MA plan. (See 42 C.F.R. § 422.300 et seq.) The payment is referred to as the "capitation" rate. (See 42 C.F.R. § 422.208(a).) The MA organization may contract in turn with a physicians group and hospitals to provide direct services to enrollees for a monthly fee per enrollee, regardless of the services actually provided in a given month. (Yarick, supra, at p. 1164.)
"In 2003, Congress enacted the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). (Pub.L. No. 108-173 (Dec. 8, 2003) 117 Stat. 2066.) The MMA amended section 1395w-26(b)(3) by replacing the prior limited preemption provision with the current language declaring '[t]he standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by MA organizations under this part.' ([42 U.S.C.] § 1395w-26(b)(3).)" (Cotton, supra, 183 Cal.App.4th at p. 449.)
D. Admissibility of Payments Under a Medicare Advantage Plan
The payments for Yee's medical care under Health Net's MA plan were admissible under section 3333.1. According to the evidence, Yee assigned her Medicare benefits to Health Net as part of her enrollment in HNSP to provide for her health care services. Therefore, the amounts that Health Net paid to Yee's medical providers were amounts "payable as a benefit to the plaintiff as a result of the personal injury pursuant to . . . [a] contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services." (§ 3333.1, subd. (a).)
Admission of Health Net's payments under section 3333.1 does not conflict with any of the Medicare provisions. Medicare has an independent right, and is subrogated to the right of an injured party, to recover conditional payments that Medicare has made for a beneficiary's care when payment by the primary payer was not made or could not reasonably be expected to be made promptly. However, in this case, Medicare did not make any conditional payments. Medicare paid a monthly sum to Health Net to provide for Yee's medical care and Health Net made payments for Yee's care. There is no evidence or authority to suggest that Medicare is entitled to recover the capitation amount paid to an MA organization, which Medicare paid regardless of whether Yee received any care or sustained any injuries. Nor is there any evidence or authority that Medicare is entitled to recover amounts spent by Health Net for Yee's medical care.
The trial court erred by excluding evidence of Health Net's payments for Yee's medical care which was explicitly admissible under section 3333.1. Dr. Tse was prejudiced by the exclusion of payment information which could have altered the jury's award of past economic damages. Therefore, the judgment must be reversed for a new trial on the issue of economic damages.
V. Yee's Cross-Appeal
Our determination that a new trial on damages is required renders Yee's cross-appeal moot.
DISPOSITION
The portion of the judgment awarding economic damages is reversed. The trial court is directed to conduct a new trial on the issues of past and future economic damages in accordance with this opinion. In all other respects, the judgment is affirmed. Appellant Kam Y. Tse is awarded his costs on appeal.
KRIEGLER, J. We concur:
TURNER, P. J.
ARMSTRONG, J.