Opinion
B297744
01-20-2021
GIANNA BRELIANT, Plaintiff and Appellant, v. WARREN BOYD et al., Defendants and Respondents.
California Trial Lawyers and Allen B. Felahy for Plaintiff and Appellant. Baker, Keener & Nahra, Derrick S. Lowe and Robert C. Baker for Defendants and Respondents Warren Boyd and Commerce Resources International, Inc. Callinson, Daehnke, Inlow & Greco and Vicki Greco for Defendant and Respondent Carrie Fisher. Masserman & Ducey, Terri L. Masserman, Robert J. Borowski and Mitchell F. Ducey for Defendant and Respondent Jacob Schmidt.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EC057245) APPEAL from a judgment of the Superior Court for Los Angeles County, Margaret L. Oldendorf, Judge. Affirmed. California Trial Lawyers and Allen B. Felahy for Plaintiff and Appellant. Baker, Keener & Nahra, Derrick S. Lowe and Robert C. Baker for Defendants and Respondents Warren Boyd and Commerce Resources International, Inc. Callinson, Daehnke, Inlow & Greco and Vicki Greco for Defendant and Respondent Carrie Fisher. Masserman & Ducey, Terri L. Masserman, Robert J. Borowski and Mitchell F. Ducey for Defendant and Respondent Jacob Schmidt.
Gianna Breliant appeals from a judgment in favor of defendants Warren Boyd, Commerce Resources International, Inc., Carrie Fisher, and Jacob Schmidt following a jury trial on her claims arising from the death of her daughter, Amy Breliant. Amy died from an overdose of heroin, which she obtained and injected while living in a sober living space provided by Boyd; the space was owned by Schmidt and leased to Boyd. (Amy previously had stayed in a space Boyd leased from Fisher.) The jury found that neither Schmidt nor Fisher was in a joint venture with Boyd and his company, Commerce Resources International, Inc. (jointly, Boyd/CRI). The jury also found that Boyd/CRI was negligent, but that the negligence was not a substantial factor in causing Amy's death.
We will refer to Gianna Breliant and Amy Breliant by their first names to avoid confusion.
Gianna raises four issues on appeal. She contends the trial court erred by: (1) not providing the jury with a readback of all of the testimony that she asserts was responsive to the jury's request for a readback; (2) declining to provide a definition of "conduct" as used in a jury instruction; (3) excluding certain testimony from her expert witness; and (4) allowing defendants' expert witness to offer improper opinions. We conclude the trial court did not abuse its discretion by limiting the testimony to be read back to the jury to those portions that were directly responsive to the jury's request. We also find that Gianna forfeited her challenge to the court's response to the jury's request for a definition of the word "conduct," but even if she had not forfeited the issue we conclude the court did not err by declining to define the word, which is a word of common understanding and was used in its ordinary sense in the jury instruction at issue. With regard to the exclusion of certain testimony by Gianna's expert witness, we conclude the court did not abuse its discretion by finding that the opinions at issue had not previously been disclosed to defendants. Finally, we find that Gianna failed to object to the defendants' expert witness testimony on the grounds she asserts here, but even if she had preserved that objection, the testimony at issue did not constitute improper expert opinion. Accordingly, we affirm the judgment.
We note that none of the issues Gianna raises affects the judgments in favor of Fisher and Schmidt in light of the jury's unchallenged finding that neither Fisher nor Schmidt were in a joint venture with Boyd/CRI, the sole source of their potential liability.
BACKGROUND
A. Factual Background
1. Amy's History of Drug Use and Attempted Rehabilitation
Amy began using drugs—marijuana and crack cocaine—when she was 13 or 14 years old and a freshman in high school. At the recommendation of Amy's counselor, Gianna sent Amy to a wilderness program to get her away from bad influences. Amy stayed in that program for six weeks. Instead of returning home, Amy was sent to Mount Bachelor Academy, a boarding school for children with various behavioral issues (including drug abuse), in order to complete high school.
Amy was at Mount Bachelor for two years, during which she ran away three times. On two of those occasions, when Amy eventually was found, she was under the influence of drugs (including marijuana, Ecstasy and cocaine) and needed to undergo detoxification.
After graduating high school at Mount Bachelor, Amy returned home and got a job and an apartment. Two or three months later, Amy had to be taken to the hospital after partying with friends. She was in the hospital for a few days, then was sent to the first of several drug rehabilitation treatment programs over the next two years, none of which she completed.
2. Amy Comes Under Boyd's Care
In January 2010, Amy turned 21 years old, and Gianna threw her a birthday party at a restaurant. A young woman, whom Gianna did not recognize but who said she was a friend of Amy's, arrived at the party. Ten minutes later, Amy got very sick. By then, the woman was gone. Gianna had someone take Amy home and stay with her. She called the psychiatrist who had been treating Amy over the years to ask him to meet with Amy. After meeting with Amy, the psychiatrist recommended that Gianna speak with Boyd, who was described as an interventionist, to see if he could help Amy.
Boyd met with Amy. After speaking with her, he believed she was addicted to heroin and possibly speed. He arranged to have Amy stay at a bungalow on Fisher's property while he evaluated her to see if he could help her. Over the course of two months, Boyd concluded that Amy "was a very knowledgeable veteran heroin user."
While at Fisher's house, Amy was in the company of "sober companions," i.e., people who were "keeping [her] company and provoking sobriety [by promoting] 12-step meetings, exercise, nutrition, [and] sleep schedule." After a couple of months there (from Jan. 29 to Apr. 9 or 10, 2010), Amy ran away; when she was found, she was "all drugged up." Boyd took Amy to a facility for detoxification. After spending three days at that facility, Amy ran away again. Once again, Amy relapsed. She was found and brought back to the facility for more detoxification. She left again after a week. She was in very bad shape when she was found, so Boyd had her sober companions take her to a different sober living facility for detoxification.
While Amy was being taken to that facility, Boyd met with Gianna to discuss Amy's situation. He told Gianna that he wanted to put Amy in a drug rehabilitation center. Gianna agreed, but Amy ran away before Boyd was able to take her to that center. Boyd found her two days later and put her in a house with a sober companion; she stayed there until the end of June 2010.
Gianna brought Amy home on June 30, 2010. Amy stayed one night, then left. When Gianna could not find her, she contacted Boyd. Boyd found Amy, who had relapsed again, and took her to another sober house, this one owned by Schmidt. Amy stayed there for several months.
In her interactions with Boyd over the months since he first placed her in a sober living house, Amy told him that the only time she was happy was when she was under the influence of drugs. She said she planned to regulate her heroin use and believed she could have a job while still maintaining her habit. She said similar things to Jade Dearing, one of her sober companions, telling Dearing that heroin was the love of her life and that she believed she could be a functional user, i.e., she could have a job and do drugs on the weekends.
3. Amy's Death
About a week before September 20, 2010, Gianna told Joe Dolo, one of Amy's sober companions, that she wanted to get Amy out of the sober house and take her to the Betty Ford center for three months of treatment. On September 19, Amy asked Dearing to drop her off at a coffee house so she could meet her friend Austin Roque. Roque met Amy and drove her to the parking lot of a grocery store so she could meet another "friend." When her friend's car pulled into the parking lot, Amy got out of Roque's car and got into the friend's car. She then returned to Roque's car, and he drove her back to the sober house. When Amy returned to the sober house, Dearing believed she was high on drugs, and told Dolo.
That same evening, September 19, 2010, Suzan Jorgensen, who had been offered a job to monitor Amy, went to meet Amy. Amy was not at the house when Jorgensen arrived, but she came home shortly thereafter. While Jorgensen was talking with Amy, it appeared to her that Amy might have taken some sort of substance, because she started slurring her words, slumping over, and became extremely lethargic. Jorgensen left the house and called Schmidt to tell him what she observed; Schmidt told her to tell Boyd. She called Boyd and told him that Amy appeared to be on some sort of substance. Boyd thanked her and said, "We'll take care of it."
At trial, Boyd denied speaking with Jorgensen on September 19.
The next day, September 20, 2010, Amy called Roque and told him that she "got caught but she still had some [heroin] hidden somewhere." She also mentioned that she was upset because Boyd had not shown up. Gianna called Amy that same day and told her she wanted to come pick her up and take her to see her father, who had just gotten home from the hospital. Amy told her that she had an appointment for a job the next day, and she would call Gianna when she was finished. That night, Amy locked herself in her room and injected heroin. She died within minutes. B. Relevant Procedural Background and Trial
In November 2011, Gianna filed a malpractice action against various physicians who treated Amy. She subsequently filed another lawsuit against Boyd/CRI, Fisher, Schmidt, and William Breliant, which was consolidated with the malpractice lawsuit. The consolidated cases have a long and complicated procedural history, including multiple appeals, none of which is relevant to this appeal. Suffice to say that the case went to trial against Boyd/CRI, Fisher, and Schmidt on three causes of action: dependent adult abuse, wrongful death, and unfair business practices. The alleged liability of Fisher and Schmidt was premised upon the allegation that each of them was in a joint venture with Boyd/CRI.
Among the witnesses who testified at trial were two physicians who specialize in addiction medicine. Dr. David E. Smith was designated by Gianna to testify about (1) "substance abuse and addiction, the effects of heroin addiction, including the severe physical and mental limitations caused by heroin addiction, and the treatment of addiction and substance abuse"; (2) "the standards of care for substance abuse treatment, including sober living facilities and residential environments"; (3) "the caregiver relationship with a patient in a sober living facility or residential environment, including the responsibilities of a caregiver to a patient in a sober living facility or residential environment"; and (4) "defendants' treatment of Amy Breliant, whether that treatment met the standards of care for a sober living facility, and whether that treatment contributed to Amy Breliant's death."
Dr. Matthew A. Torrington was designated by Boyd/CRI and Fisher to testify about (1) the various modalities available to individuals who seek assistance with their addiction; (2) the applicable standards of care for the providers of the various modalities in treating addictions; and (3) all other standards relative to drug addiction treatment, among other topics. At trial, he testified about the inherent danger and high risk of death from self-injecting heroin, the inability of anyone to know when an addict will relapse, the kinds of treatments available to help an addict stay off of drugs, and the need for the addict to fully participate in that treatment in order to have a chance of success.
Our discussion of the topics for which Dr. Torrington was designated to testify is based upon Gianna's description in her motion in limine to exclude his testimony; she did not include the actual designation in her appellant's appendix, even though it appears it had been attached to a declaration she filed in support of the motion.
Dr. Torrington testified that treatment for heroin addiction is successful only 35 percent of the time.
Gianna's theory was, in essence, that Boyd/CRI's conduct in caring for Amy was below the standard of care for treating drug addicts, particularly once Boyd/CRI was given notice on September 19, 2010 that Amy appeared to be under the influence of drugs, and that Boyd/CRI's negligence was a substantial factor in causing Amy's death. Boyd/CRI's theory was that there was no negligence, but even if there was, Amy was solely responsible for her death.
The jury was presented with a special verdict form that asked, as its first two questions, whether Fisher or Schmidt were in a joint venture with Boyd/CRI for the care of Amy while she was staying at their respective residences. The jury responded "No" to those questions; as instructed by the verdict form, the jury answered no further questions regarding Fisher's or Schmidt's conduct. The verdict form then asked whether Boyd/CRI were negligent; the jury answered "Yes." The jury then answered "No" to the question: "Was Warren Boyd's/CRI's negligence a substantial factor in causing Amy Breliant's death?" The trial court entered judgment in favor of Boyd/CRI, Fisher, and Schmidt, from which Gianna timely filed a notice of appeal.
Apparently, Gianna electronically filed her original notice of appeal on May 3, 2019, three days before the last day to timely file a notice of appeal from the judgment. The superior court rejected the notice four days later because, although the notice stated that Gianna was appealing from the judgment after jury trial, she had failed to state on the notice the date of the judgment. She immediately filed and served a corrected notice of appeal, but did so after the last day to file a notice of appeal. Boyd moved to dismiss the appeal. We denied Boyd's motion, concluding that Gianna's original notice of appeal adequately identified the judgment or order from which she was appealing, and therefore her appeal was timely.
DISCUSSION
A. Read-back of Testimony Requested by the Jury
During deliberations, the jury sent a note to the court asking for a read-back of certain testimony, including "Dr. Smith's testimony regarding what more could have been done to prevent Amy's death. Questions were asked by Mr. Bunch [i.e., counsel for Gianna]." The court asked counsel to look at the testimony of Dr. Smith identified by the court reporter and "confirm that the universe of that Q & A is something that everybody agrees to, and then [the court reporter will] mark that." Counsel for Gianna identified six excerpts of testimony that he asserted were responsive to the jury's request; defendants' counsel objected to five of those excerpts as not responsive to the jury's request. Defendants' counsel identified two different excerpts they claimed were responsive, and Gianna's counsel agreed as to one of them.
The trial court found that all but one of Gianna's counsel's proposed excerpts (the one that defendants did not object to) were not responsive to the jury's request because they did not specifically address what more could have been done to prevent Amy's death. The court also found that one of the excerpts proposed by defendants' counsel did not involve questions asked by Gianna's counsel, as specified in the jury's request. Therefore, the court allowed only two of the proposed excerpts—the two excerpts that both sides agreed were responsive—to be read back to the jury.
On appeal, Gianna contends the trial court erred by refusing to provide the jury with all of the testimony that was requested. We disagree.
There is no question that, as Gianna asserts, if the jurors "ask for testimony relating to a specified subject, they are entitled to hear all of it." (McGuire v. W.A. Thompson Distrib. Co. (1963) 215 Cal.App.2d 356, 365.) But, "it is equally clear that the trial judge does not have to order read any part of the record which is not thus requested by the jury foreman." (Id. at pp. 365-366.)
In this case, the jury asked for very specific testimony: testimony by Dr. Smith, in response to questioning by Gianna's counsel, about "what more could have been done to prevent Amy's death." In the two excerpts the trial court chose to be read back to the jury, Dr. Smith was asked for the reasons he believed Boyd played a causal role in Amy's death. In one excerpt he explained that addiction is a chronic disease, and each relapse increases the severity of the disease, requiring more intense treatment, but that did not happen under Boyd's care; he believed if Amy had been given adequate treatment, it would have decreased the probability that she would have died. In the second excerpt, Dr. Smith testified that if Amy had been on medication-assisted treatment, she would not have died even if she injected herself with heroin.
In contrast, in the excerpts of testimony that Gianna's counsel identified but the trial court declined to have read back to the jury, Dr. Smith was asked more general questions about best practices or standards of care for sober living environments, rather than how Amy's death could have been prevented. Those excerpts involved the following:
• What would be required by the best practices of the industry or standard of care if Boyd or Schmidt were advised that Amy appeared to be high on something; Dr. Smith testified that the standard of care would be to have an evaluation and drug
testing to determine the severity of the intoxication and what additional treatment plan was indicated.Because these excerpts did not fall within the jury's specific request for testimony about what more could have been done to prevent Amy's death, we conclude the trial court did not abuse its discretion in declining to include them in the readback. B. Jury Request for the Definition of "Conduct"
• Whether the industry standard of care or best practices in 2010 would have required that Amy and her room be searched for drugs if she had been found to have relapsed, and the reasons that would have been required; Dr. Smith testified that such searches were needed because having a clean and sober environment is an important part of the "milieu therapy" to decrease the probability of relapse.
• Why Dr. Smith believed Amy was harmed when Boyd received money for her care but placed her with untrained and unlicensed personnel; Dr. Smith testified that he had seen the most success for patients with severe addiction when medication-assisted treatment was used.
• The role of drug testing in a clean and sober environment; Dr. Smith testified that drug testing was a crucial part of the evaluation of a patient to determine what needed to be done.
We would be remiss if we did not address Gianna's baseless assertion that "the trial court had 'made up its mind' regarding the evidence prior to the jury's deliberations and was determined to hasten the jury in arriving at a verdict . . . [by] improperly cherry pick[ing] Dr. Smith's testimony." In an attempt to show bias, Gianna herself has "cherry picked" a statement by the trial court, taking it entirely out of context. In stating (outside the presence of the jury) that "the thing that killed Amy was her addiction," the court was merely observing that the area of addiction treatment and services is very complex, and the question whether any of the defendants' conduct was a substantial factor in causing Amy's death would most likely be based upon the jury's consideration of the testimony of all of the medical experts, including Dr. Smith, Dr. Torrington, and others. In fact, there is nothing in the record to indicate that the trial court did anything other than carefully respond to the jury's request. Indeed, having reviewed the entire record, we observed that the trial court approached all aspects of the case with care, thoroughness, and fairness.
Among the instructions given to the jury was CACI No. 430, which defines "substantial factor" as follows: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct."
During deliberations, the jury sent a request to the trial court for "[a] definition of the word 'conduct' in the context of the definition of 'substantial factor.' Please give examples." While discussing the request with the court, counsel for Fisher noted that the use notes for CACI No. 430 discuss the meaning of "conduct." That use note states: "'Conduct,' in this context, refers to the culpable acts or omissions on which a claim of legal fault is based, e.g., negligence, product defect, breach of contract, or dangerous condition of public property. This is in contrast to an event that is not a culpable act but that happens to occur in the chain of causation, e.g., that the plaintiff's alarm clock failed to go off, causing her to be at the location of the accident at a time when she otherwise would not have been there. The reference to 'conduct' may be changed as appropriate to the facts of the case." (CACI No. 430, Directions for Use.) Counsel for Gianna suggested that the court use the first and second sentences up to the term "e.g." in each sentence, noting that it would be "very difficult" to provide examples that would apply in this case. He stated that this would be "an answer that is acceptable to give. It gives them something." But he said he did not think the court could come up with an appropriate example to include.
Counsel for Schmidt objected to providing this definition to the jury, arguing that "[t]he word conduct is standard and it's used multiple times in the special verdict form. They should be able to figure out what it means." Fisher's counsel also asserted that the language in the use note would be confusing to a lay person. Schmidt's counsel then proposed providing the definition she found in an online dictionary, i.e., "the manner in which a person behaves"; counsel said she believed that definition was appropriate because the word "conduct" in the instructions is directed at a person, as opposed to an event. Gianna's counsel indicated he was not sure whether "conduct" is directed at a person or not, and said, "I think the only way you can go, Your Honor, is either nothing or put in what's in the use note."
The court proposed that it give the jury "something of a nonanswer, which is to say: This term is difficult for us to define for you in this case. You must consider the evidence and . . . evaluate this issue yourselves. This term is difficult for us to define for you. . . . You must consider all of the evidence and evaluate this issue for yourselves. [¶] I suppose I could also say something like: Evaluate this issue considering the instruction as a whole, or something like that." Gianna's counsel replied, "That makes sense to me." When the court asked if anyone had "any thoughts on whether this is helpful," Gianna's counsel responded, "I think that your statement—the entire statement, you need to look to the thing as a whole, add that to the end, and I think you're good." After further discussion about the exact language for the court's response to the jury, Gianna's counsel suggested the court could make it simpler by just saying, "We can't define it for you."
The court concluded that it would tell the jury: "This term is difficult for us to define for you. You must consider all the evidence and the instructions and determine this . . . yourselves." No objection was made to this language.
On appeal, Gianna contends the trial court erred by "refus[ing] to address" the jury's request for a definition of "conduct" as used in CACI No. 430. As is evident from our discussion of what actually took place, the court did not refuse to address the jury's request. Instead, it sought the input of all counsel as to how best to address it. And, more importantly, it was Gianna's counsel who suggested that the court either decline to provide a definition or provide a modified version of the use note (which had been objected to as too confusing for lay people). Moreover, when the court indicated what it would tell the jury, Gianna's counsel indicated his approval.
Given that Gianna's counsel suggested that the court decline to define "conduct" and indicated his approval of the language the court chose to give to the jury, Gianna cannot now challenge the court's response on appeal. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167 ["Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error"].) In any event, even if the issue had not been forfeited, we find no error.
Although, as Gianna correctly observes, Code of Civil Procedure section 614 imposes a duty on the trial court to provide the jury with information the jury desires on points of law, "[i]f . . . '"the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury's request for information."'" (People v. Smithey (1999) 20 Cal.4th 936, 984.) In light of the fact that the word "conduct" is a word in common use and of common knowledge, and it was used in CACI No. 430 in its ordinary sense rather than in any technical legal sense, we conclude the trial court did not abuse its discretion by declining to define the word and referring the jury to the instructions to determine its meaning. C. Exclusion of Dr. Smith's Testimony Regarding Sober Companions
Although People v. Smithey involved Penal Code section 1138 rather than Code of Civil Procedure section 614, the relevant language in the two statutes is virtually identical.
During his direct examination, Dr. Smith was asked why the use of sober companions is necessary in a clean and sober environment. He responded, "First of all they have to understand what recovery is about, help them work their program. And second of all, they serve as a role model. It's knowledge plus role model and belief. And the craving addict has to believe that there's a better way. [¶] And the sober companion can serve as a role model for that. So it's a very important part of the overall therapeutic process. As I've suggested earlier, they're not licensed. It's not codified. But it is best practices."
Counsel for Boyd objected to and moved to strike this testimony on the ground that it was outside the scope of Dr. Smith's deposition and the opinions he was expected to give in his testimony. Counsel explained that Dr. Smith had not testified at his deposition about the role of sober companions, and that he had answered "No" when asked toward the end questioning if there were any other opinions he had regarding the case.
The trial court identified Boyd's objection as a Kennemur objection, and turned to Gianna's counsel for his response. Gianna's counsel argued that Dr. Smith's opinions regarding sober companions were contained in his declaration filed in opposition to Fisher's motion for summary judgment, which declaration was addressed in Dr. Smith's deposition, and in Dr. Smith's declaration in opposition to Boyd's summary judgment motion, which was filed after Dr. Smith's deposition was taken. Counsel argued that Boyd's counsel could have taken Dr. Smith's deposition regarding any new information raised in the second declaration but never attempted to do so. Boyd's counsel argued that the subsequent declaration did not give notice that Dr. Smith would be providing additional opinions during his trial testimony, and that Gianna's counsel had an obligation to give notice that Dr. Smith would be testifying about a different and greater set of opinions than he revealed in his deposition.
Kennemur v. State of California (1982) 133 Cal.App.3d 907 (Kennemur).
The trial court, which had read the entire deposition before Dr. Smith testified, reviewed again the relevant portions of the deposition as well as the post-deposition declaration before ruling on Boyd's objection. The court concluded that, even taking into account Dr. Smith's opinions set forth in the post-deposition declaration, his testimony regarding the duties and role of a sober companion had not been disclosed to defendants. Therefore, the court sustained Boyd's objection and granted his motion to strike "Dr. Smith's specific answer about the duties and the role of a sober companion."
On appeal, Gianna contends the trial court erred by excluding this testimony, arguing that defendants were given sufficient notice that Dr. Smith would be providing expert testimony regarding sober companions. We find no abuse of discretion. (Easterby v. Clark (2009) 171 Cal.App.4th 772, 778 [trial court's ruling on admissibility of expert testimony is reviewed for an abuse of discretion].)
A party who intends to present an expert witness's testimony at trial must, if requested by an opposing party under Code of Civil Procedure section 2034.210, disclose the general substance of the testimony the witness is expected to give. (§§ 2034.210, 2034.260.) "'As interpreted by the California courts, this requires a party to "disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both." [Citation.]' [Citation.]" (Easterby v. Clark, supra, 171 Cal.App.4th at p. 778.) Thus, in Kennemur, the court held that where an expert witness testified at his deposition that he had not investigated or reached opinions about certain topics, he was precluded from offering testimony on those topics at trial even though they were within his identified field of expertise. (Kennemur, supra, 133 Cal.App.3d at p. 920.) And in Jones v. Moore (2000) 80 Cal.App.4th 557, we held that even when a party's expert witness declaration arguably was broad enough to encompass the testimony sought to be presented at trial, "[w]hen an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial." (Id. at p. 565.)
Further statutory references are to the Code of Civil Procedure.
Gianna contends, however, that defendants were on notice that they needed to "explore the issue of sober companions" at Dr. Smith's deposition, and that their failure to do so should not prevent her from presenting Dr. Smith's testimony on that subject at trial. (Citing Meyer v. Cooper (1965) 233 Cal.App.2d 750 (Meyer).) Her contention fails for two reasons.
First, Gianna's reliance on Meyer is misplaced. As the court in Kennemur noted, while the principles articulated in Meyer—i.e., that generally a witness being deposed "is under no obligation to volunteer information or to disclose relevant and material matters not requested" (Kennemur, supra, 133 Cal.App.3d at p. 919)—are sound, they do not govern a party's duty of disclosure under the expert witness disclosure statutes, which require the expert witness to disclose all matters about which the witness intends to testify. (Ibid.) Thus, Meyer does not apply here.
Second, the declarations and deposition testimony that Gianna points to as providing the requisite notice did not, in fact, give notice that Dr. Smith would testify about the duties and role of sober companions. The declarations at issue, which were attached as exhibits to Gianna's section 2034.260 expert witness declaration, are declarations by Dr. Smith that were submitted in opposition to Fisher's and Schmidt's motions for summary judgment. In each of those declarations, sober companions were mentioned once: Dr. Smith opined that Boyd's conduct upon learning that Amy was high on September 19, 2010 was inadequate because, among other things, he did not "direct[] the sober companions to conduct . . . a search" of Amy or the sober home.
In the deposition testimony excerpt Gianna cites, which appears to be the only time "sober companion" was mentioned during the deposition, Dr. Smith apparently had been discussing the "psychosocial aspect" of a drug treatment program. He was asked whether having Amy constantly accompanied by sober companions constituted that psychosocial aspect. He responded, "Yes. That is the psychosocial aspect. But the companion is evidence that [Boyd] was operating a treatment program. He was operating a psychosocial treatment program in which what should have happened was medication-assisted treatment. Medication-assisted treatment plus the psychosocial."
We do not have the transcript of Dr. Smith's deposition before us, but the trial court did, and consulted the index in an apparent attempt to find where the term "sober companion" was used. The court then described and/or read that portion of the testimony on the record.
Contrary to Gianna's assertion, the fact that Dr. Smith mentioned sober companions in these three instances did not open the door for him to testify on any topic related to sober companions. Because Dr. Smith did not discuss the duties or specific role of sober companions in his declarations or his deposition testimony, and stated in his deposition that he would be offering no other opinions, the trial court properly sustained Boyd's objection and excluded Dr. Smith's testimony on the duties and role of sober companions. D. Admission of Certain Testimony by Dr. Torrington
As noted, Dr. Torrington, an addiction medicine specialist, testified as an expert witness on behalf of defendants. Before trial, Gianna brought a motion in limine seeking to exclude Dr. Torrington's testimony as a whole on the ground he was not qualified to opine on the standard of care for sober living services or interventionists, and therefore could not testify about defendants' conduct with regard to Amy. The trial court denied the motion without prejudice, indicating that the admissibility of Dr. Torrington's testimony would depend on the way that testimony was developed and whether an adequate foundation was laid.
On appeal, Gianna contends the trial court erred by allowing the following questions and Dr. Torrington's responses:
1. "Q. And from your review of the records, did Amy have any desire to remain sober her whole—the rest of her life, from the time that she was under the care of Warren Boyd in January until the time she died in September of 2010?"
"A. I'm not sure how to answer that question. There's no direct evidence that I'm aware of."
2. "Q. And do you have an opinion as to whether anything could have been done to stop her?
"A. I mean, perhaps there's something that could have been done differently. I don't know, but once someone is alone and they inject heroin and they're by themselves and they inject, and if there's not someone standing right next to them when that happens, maybe there isn't anything that can be done."
3. "Q. And from everything you've heard in that hypothetical question I asked you, was Amy Breliant doing everything possible to undermine the success of her remaining sober?"Gianna argues that in allowing that testimony the court permitted Dr. Torrington to provide improper opinion testimony. Her contention fails for two reasons.
"A. I don't know if she was doing everything possible to undermine her treatment, but I don't think she was doing everything possible to enhance her treatment. So if she was—I mean, obviously she was hell-bent on using and she facilitated an environment where she was able to get that done despite whatever limits were in place. And in that environment, it's—despite your best efforts sometimes, it can be impossible to stop someone."
In the hypothetical, Boyd's counsel asked Dr. Torrington to assume certain facts, including facts regarding Amy's history with drugs and attempts at rehabilitation, and the circumstances surrounding her acquisition of and use of the heroin that resulted in her death. --------
First, Gianna did not object to the challenged testimony on the grounds she urges here. She objected to the first and third questions on the ground that they called for speculation; she did not object to the second question, nor did she object to or move to strike Dr. Torrington's responses to any of the questions. As our Supreme Court repeatedly has instructed, "[r]eviewing courts will generally not consider a challenge to the admissibility of evidence unless there was a '"'specific and timely objection in the trial court on the [same grounds] sought to be urged on appeal.'"'" (People v. Gomez (2018) 6 Cal.5th 243, 286.)
Second, even if she had preserved her objection, the testimony to which she objects simply does not say what Gianna urges. For example, Gianna asserts that Dr. Torrington opined about whether Amy had "any desire to remain sober." In fact, Dr. Torrington said that he did not know how to answer the question, and simply said he was not aware of any direct evidence that she wanted to remain sober. Similarly, Dr. Torrington did not, as Gianna asserts, offer his opinion "regarding whether there was 'anything that could have stopped' Amy's heroin overdose." Instead, he said he did not know if there was and that "perhaps" something could have been done differently, although he noted that if someone was alone when they injected heroin there might not be anything that could have been done. Finally, in his response to the third challenged question Dr. Torrington merely acknowledged the evidence showing that Amy was determined to continue using heroin and opined that it can sometimes be impossible to stop such a person from using despite one's best efforts. Since Dr. Torrington is an acknowledged expert in treating people suffering from drug addiction, this testimony was proper opinion testimony.
In short, Gianna's challenge to Dr. Torrington's testimony has no merit.
DISPOSITION
The judgment is affirmed. Boyd, Commerce Resources International, Inc., Fisher, and Schmidt shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.