Opinion
D039316.
7-18-2003
FRIDA DERUNGS et al., Plaintiffs and Appellants, v. SCRIPPS CLINIC MANAGEMENT SERVICES ORGANIZATION, INC., et al., Defendants and Appellants.
This procedurally convoluted medical malpractice and wrongful death action arose out of the death of Franco DeRungs, who had dual Swiss and Mexican citizenship, and who had come to the United States from Mexico in the mid-1990s and was working legally under a work visa as a senior vice president at a bank in San Diego. He had sought to extend his residency in the United States by applying for a national interest waiver of the labor certification requirement about two months before he died in January 2000.
Franco DeRungss wife, Frida DeRungs, and their three children (collectively the DeRungs) sued Francos treating physician, Steven Thompson, M.D., and "Scripps Clinic" for negligently failing to diagnose the coronary artery disease that resulted in Francos death. An answer to the complaint was filed on behalf of Thompson and an entity not named in the complaint, Scripps Clinic Management Service Organization, Inc. (Management). The answer asserted as an affirmative defense that any noneconomic damages awarded against defendants "shall not exceed" the $ 250,000 limitation on such damages set forth in Civil Code section 3333.2, which is one of the provisions of the Medical Injury Compensation Reform Act of 1975 (hereafter referred to as MICRA).
The parties agree that Scripps Clinic Management Service Organization, Inc. is the correct name of the corporation variously referred to in the record as "Scripps Clinic Management," "Management," and "MSO."
All further statutory references are to the Civil Code unless otherwise specified.
As this court recently explained in Palmer v. Superior Court (2002) 103 Cal.App.4th 953, 957, footnote 2, MICRA "is comprised of a number of statutes implementing the policy of containing the costs of malpractice insurance by controlling or redistributing liability for damages, thereby maximizing the availability of medical services to meet the states health care needs. [Citation.] [Citations.]" Under section 3333.2, the MICRA statute at issue here, damages for "noneconomic losses" (also called general damages, such as pain, suffering, inconvenience, physical impairment, and disfigurement) in any injury action against a "health care provider" for "professional negligence" is limited to $ 250,000. Subdivision (a) of that section provides: "In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage." The $ 250,000 cap on noneconomic damages is set forth in subdivision (b) of that section, which provides: "In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($ 250,000)."
The term "health care provider" is defined in section 3333.2, subdivision (c)(1), which provides in part: "Health care provider means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code." (Italics added.)
The term "professional negligence" is defined in section 3333.2, subdivision (c)(2), which provides in part: "Professional negligence means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital."
The DeRungs amended their complaint to substitute another corporate entity, Scripps Clinic Medical Group, Inc. (Medical Group), in place of one of the Doe defendants. No action was taken to dismiss either "Scripps Clinic" or Management from the action.
The parties entered into a written stipulation under which Thompson admitted he was liable for negligently causing Franco DeRungss death. The DeRungs effected service of process on Medical Group, and the parties began negotiating another stipulation under which Medical Group would admit it was liable as Thompsons employer. No answer or other formal response to the amended complaint was filed on behalf of Medical Group.
After Medical Group participated in the discovery process by exchanging expert witness information and then de-designating their medical expert on the issue of Franco DeRungss life expectancy, the parties entered into a stipulation under which liability was admitted on behalf of Medical Group as Thompsons employer. Through what the defense claims was an oversight, however, defense counsel signed the stipulation on behalf of Thompson only.
The defense filed various motions in limine and trial briefs that confusingly referred to "Scripps Clinic," Medical Group and Management as defendants, sometimes naming all three entities in the same document. In both the joint trial readiness conference report and their trial brief, the DeRungs represented that Thompson and Medical Group were the only defendants in this matter and that both had admitted liability.
During proceedings shortly before jury voir dire, the DeRungs attorney, Todd Macaluso, claimed that Medical Group had not appeared in the action, and Management was the defendant that had admitted liability as Thompsons employer. At Macalusos request, defense counsel orally stipulated on the record that Medical Group was a defendant.
The case was tried to a jury on the issue of damages only. It is undisputed that the DeRungs presented no evidence to the jury at trial of any independent negligence on the part of Management, and the defense presented no evidence to show that any of the defendants was a licensed health care provider within the meaning of MICRA. Trial counsel for both sides referred to Thompson and "Scripps Clinic" as the only defendants and made no mention of either Medical Group or Management. The court excluded all evidence of Franco DeRungss immigration status, his heart disease and his work life expectancy. The jury returned a special verdict that awarded to the DeRungs the sum of $ 4.7 million, including $ 1.5 million for noneconomic damages.
In posttrial proceedings, the court took judicial notice at the request of the defense that Thompson was a licensed physician at the time he negligently treated Franco DeRungs. The court found that Thompson was a licensed health care provider within the meaning of MICRA, and therefore he was entitled to the benefit of the $ 250,000 limitation on noneconomic damages set forth in section 3333.2. Applying section 3333.2, the court reduced the jurys $ 1.5 million noneconomic damages award to $ 250,000 and entered judgment against Thompson and Medical Group in the amount of $ 3.45 million in damages. The court also found that the DeRungs had offered no evidence at trial to establish liability for negligence on the part of Management, and the defense had not judicially admitted any such liability. The court denied a new trial motion brought by the DeRungs on various statutory grounds.
On appeal, the DeRungs challenge the entry of judgment in favor of Management, the courts posttrial reduction of the noneconomic damages under MICRA ( § 3333.2), the courts denial of the DeRungs motion for new trial as to Management, and the courts order granting the defenses motion to tax costs.
A separate appeal ostensibly on behalf of Thompson and "Scripps Clinic" (hereafter referred to as defendants appeal) challenges claimed evidentiary errors at trial, and the portion of the judgment that awarded to the DeRungs future economic damages in the sum of $ 3.012 million. Defendants claim the court prejudicially erred by excluding (1) evidence that Franco DeRungs was an alien who probably would have been deported within a year, and (2) all evidence of Franco DeRungss heart disease and reduced work life expectancy.
In their opening brief, Thompson and Medical Group also claimed the court committed prejudicial error by excluding expert testimony on the speculative nature of Franco DeRungss proposed business venture. In their reply brief, however, they state they have abandoned this ground for appeal.
Also pending is a motion by the DeRungs to dismiss the appeal of "Scripps Clinic" on the ground "Scripps Clinic" lacks standing to appeal. We deny this motion. We also reverse the judgment in its entirety and remand the matter for a new trial.
FACTUAL BACKGROUND
Franco DeRungs was born in Switzerland and had dual Swiss and Mexican citizenship. He came to the United States from Mexico in the mid-1990s on a work visa. He first worked in El Paso, Texas, at State National Bank, where he set up a foreign currency exchange department. In 1996, he moved to San Diego to set up a foreign exchange department at First National Bank, where he was employed as a senior vice president until his death in January 2000. His base salary the year before he died was about $ 92,000, and he received a $ 10,000 bonus that year. While he worked at First National Bank, his primary residence was in San Diego. His wife and children lived in Mexico, but visited him in San Diego.
Franco DeRungs and some of his business associates inquired about the possibility of operating a Thomas Cook travel and financial services franchise. According to some of his associates, he might have earned an annual salary of $ 200,000 to $ 220,000. At trial, the DeRungs economic damages expert opined that Franco DeRungss annual earnings might have increased to $ 300,000 over his work life expectancy.
At the time of Franco DeRungss death, however, no one had prepared a business plan or made any financial projections for the proposed business, and no one knew when the business would open. Brian Snelling, the Thomas Cook representative whom Franco DeRungss business associates had contacted, had not met any of the people involved in the proposed business, and Thomas Cook had not approved the project. Snelling opined it was "pure speculation to say how much anyone would have made [in salary] in connection with that business," because Thomas Cook had not decided how much money it would invest in the business or the return it would demand on its investment.
In November 1999, Franco DeRungs sought to extend his residency in the United States by applying for a national interest waiver of the labor certification requirement. That application was still pending at the time of his death in January 2000.
At trial the DeRungs alleged that Franco DeRungs went to Scripps Clinic Urgent Care on or about January 30, 2000, complaining of an inner ear infection and pain in his shoulder and chest. The attending physician, Thompson, ordered an electrocardiogram (EKG) that showed signs of acute myocardial infarction. The DeRungs claimed the results of the EKG were placed in another patients file and were never relayed to Franco DeRungs, who was discharged from Scripps Clinic Urgent Care and died the next day from a massive heart attack. Franco DeRungs was 46 years of age when he died.
PROCEDURAL BACKGROUND
Additional details regarding the procedural background of this case will be discussed, post, in the discussion portion of this opinion.
The DeRungs brought a wrongful death action against Thompson, an entity they called "Scripps Clinic" and numerous fictitious "Doe" defendants, alleging negligent failure to diagnose and properly treat the coronary artery disease that resulted in Franco DeRungss death.
Defense counsel answered the complaint on behalf of Thompson, who was named in the complaint, and Management, which was not named, denying the allegations and asserting the affirmative defense that any noneconomic damages awarded against them were limited to the sum of $ 250,000 under section 3333.2.
Barton Hegeler.
In January 2001, the DeRungs amended their complaint to substitute Medical Group in the place of "DOE 2." On February 9, the DeRungs served Medical Group with a copy of the summons, the complaint and the amendment to the complaint. Medical Group, however, did not formally appear by filing an answer or doing any of the other things listed in Code of Civil Procedure section 1014 that constitute a general appearance.
Subsequent dates are to calendar year 2001 unless otherwise specified.
The text of section 1014 of the Code of Civil Procedure is set forth in footnote 15, post.
Also in February, Thompson and the DeRungs entered into a written stipulation that Thompson was negligent in the medical care he rendered to Franco DeRungs and such negligence was the cause of his death. Defense counsel and the DeRungss attorney, Macaluso, began negotiating a stipulation regarding an admission of liability on the part of Medical Group.
In March, Medical Group participated in an exchange of expert witness information and designated Reginald Low, M.D., as their medical expert on the issue of Franco DeRungss life expectancy. In May, it served a formal de-designation of Dr. Low.
Also in May, the court denied the DeRungss ex parte motion for an order compelling Thompson to attend his deposition. After defense counsel stated the "defendants" had admitted liability, the court found there was no need to do any liability discovery.
In early June, the DeRungs and "defendants" Thompson and Medical Group stipulated in writing that Thompson was an employee of Medical Group during the time he rendered medical care to Franco DeRungs. They also stipulated that Thompson had rendered that care in the course and scope of his employment, and thus Medical Group was also liable for the harm Thompson caused. Defense counsel, however, signed the stipulation on behalf of Thompson only.
Also in early June, the DeRungs attorney prepared and filed a joint trial readiness conference report, which defense counsel signed on behalf of Thompson and Medical Group. The body of the report identified Thompson and Medical Group as the sole defendants.
In their July 6 trial brief, the DeRungs represented to the court that "defendants" Thompson and Medical Group had admitted by stipulation that they were liable, and there was "no additional liability to be proven." (Italics added.)
The defense filed numerous in limine motions and trial briefs that identified Thompson as the individual defendant, but variously identified the hospital-related defendant as "Scripps Clinic," Medical Group, and Management. Defense counsel sometimes referred to all three entities in the same document. In its motion in limine No. 5, the defense successfully moved for an order precluding evidence of "defendants negligence" on grounds the "defendants" had stipulated to negligence and causation with respect to the death of Franco DeRungs, and thus such evidence was not relevant. Although the title of the motion and the signature line indicated that this motion was brought by Thompson and Management, the body of the motion papers confusingly stated that Thompson and Medical Group were the moving parties.
On July 16, shortly before jury voir dire, Macaluso disputed that Medical Group had appeared in the action. After asserting that Management was vicariously liable for the harm caused by Thompsons negligence, Macaluso asked the defense to stipulate to "bring[] [Medical Group] as a defendant." Defense counsel stated he would so stipulate, and told the court Medical Group was the only entity that was vicariously liable.
Storm Anderson.
At trial, counsel for both sides referred to Thompson and "Scripps Clinic" as the only defendants, and they made no mention of either Management or Medical Group. The only issue litigated was damages. The jury returned a special verdict that awarded to the DeRungs the sum of $ 188,000 in past economic damages, $ 3.012 million in future economic damages, and $ 1.5 million in noneconomic damages, for a total award of $ 4.7 million.
In posttrial proceedings, upon defendants request, the court took judicial notice that Thompson was a licensed physician at the time he negligently rendered medical care to Franco DeRungs in January 2000 and found he was a licensed health care provider within the meaning of MICRA. Accordingly, the court reduced the $ 1.5 million noneconomic damages award against Thompson to the sum of $ 250,000 under the provisions of section 3333.2. The court also found that under the doctrine of respondeat superior, Medical Group was also entitled to the protection of section 3333.2 as Thompsons employer. The court entered judgment against Thompson and Medical Group, jointly and severally, awarding to the DeRungs the sum of $ 3.2 million in economic damages plus $ 250,000 in noneconomic damages, for a total of $ 3.45 million plus interest. The court also entered a judgment of dismissal in favor of Management on the ground the DeRungs had presented no evidence to show that Management was liable.
The DeRungs brought a motion for new trial as to Management on various statutory grounds, including surprise, claiming (1) by granting defendants motion in limine No. 5 (discussed, ante), the court had precluded the DeRungs from presenting evidence at trial of Managements independent liability; (2) on May 24 the court had denied the DeRungs the opportunity to conduct discovery as to Managements alleged liability by denying their ex parte motion to compel Thompsons deposition based on defense counsels statement to the court that the defendants who had appeared in the action—Thompson and Management—had admitted liability; and (3) the court entered judgment against Thompson and Medical Group, a "non-MICRA entity that never appeared at trial." The court denied the new trial motion. A timely appeal by the DeRungs followed, as did a separate appeal by Thompson and "Scripps Clinic."
DISCUSSION
I. THE DERUNGS MOTION TO DISMISS THE APPEAL OF "SCRIPPS CLINIC"
In response to the appeal filed on behalf of Thompson and "Scripps Clinic," the DeRungs have filed a motion in which they seek an order dismissing the appeal of "Scripps Clinic" without prejudice to Thompsons appeal. The DeRungs move for such dismissal on the ground the corporate entity referred to as "Scripps Clinic" in defendants notice of appeal lacks standing because it is either not a "party" or not "aggrieved" within the meaning of Code of Civil Procedure section 902.
Code of Civil Procedure section 902 provides in part: "Any party aggrieved may appeal in the cases prescribed in this title." (Italics added.)
Specifically, the DeRungs contend that (1) the use of the name "Scripps Clinic" in the notice of appeal is "intentionally inaccurate and ambiguous"; (2) although Management made an appearance in the action, Medical Group did not appear or admit its liability, and the name "Scripps Clinic" is thus not the name of any party appearing in the action or any party named in the judgment; (3) if "Scripps Clinic" refers to Management, it is not "aggrieved" within the meaning of Code of Civil Procedure section 902 because judgment was entered in its favor;. and (4) even if the name "Scripps Clinic" is liberally construed to mean Medical Group, the judgment is a nonappealable consent judgment because the judgment from which "Scripps Clinic" has appealed was a judgment that Medical Group proposed.
Thompson and Medical Group have filed written opposition to the motion. For reasons we now discuss, the DeRungs motion to dismiss the "Scripps Clinic" appeal is denied.
A. Identity of "Scripps Clinic"
In their written opposition to the motion, Thompson and Medical Group concede that "Scripps Clinic" is a reference to Medical Group. Although the use of the name "Scripps Clinic" in the notice of appeal (and on the cover of the appellants opening brief filed by defendants) was "inaccurate and ambiguous" (as the DeRungs assert) and it furthers the confusion caused by the defendants inartful pleading, it is not a ground for dismissal of Medical Groups appeal.
B. Medical Groups General Appearance
Citing the California Supreme Courts decision in Vrooman v. Li Po Tai (1896) 113 Cal. 302, 305-306, 45 P. 470 (Vrooman) ("Section 1014 of the Code of Civil Procedure defines what shall constitute an appearance [and a defendant] can appear in no other way"), the DeRungs claim that "Medical Group never appeared in this action before trial by performing an act enumerated in Code of Civil Procedure section 1014, and it therefore had no attorney of record." (Fns. omitted.) It is undisputed that Medical Group did not generally appear by performing one of the acts enumerated in that section.
Code of Civil Procedure section 1014 provides in part: "A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant."
However, as the DeRungs acknowledge, the Supreme Court recently held in Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147, 998 P.2d 403 (Hamilton) that "the statutory list of acts constituting an appearance ([Code Civ. Proc.], § 1014 [filing an answer, demurrer, motion to strike, etc.]) is not exclusive; rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person. [Citation.] What is determinative is whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed. [Citation.]" (Italics added.)
The DeRungs acknowledge that the holdings of Vrooman, supra, 113 Cal. at pages 305-306 and Hamilton, supra, 22 Cal.4th at page 1147 are conflicting. Undaunted, however, they cite Sei Fujii v. State of California (1952) 38 Cal.2d 718, 728, 242 P.2d 617, for the proposition that "it has been said" that the authority of an older case decision may be as "effectively dissipated" by a later "trend" of decisional authority as by a statement expressly overruling the older decision. The DeRungs then assert that "here, however, the defendants have failed to demonstrate any trend of later decision by the Supreme Court that is contrary to Vrooman." The DeRungs also maintain that the conflict between the Vrooman and Hamilton decisions "compels this court to choose between them."
While the Supreme Court in Hamilton did not expressly overrule its prior Vrooman decision, we reject the DeRungs assertion that we are free to choose between the two. The Hamilton decision in effect overruled Vrooman on the issue of whether the statutory list of acts constituting an appearance (Code Civ. Proc., § 1014) is exclusive, and held that the list is not exclusive. (Hamilton, supra, 22 Cal.4th at p. 1147.) We are bound by the Hamilton decision.
After reviewing the entire record, we conclude that Medical Group made a general appearance in this action prior to commencement of trial. On March 16, before he signed the stipulation on May 31 that admitted Medical Groups vicarious liability as Thompsons employer, Eugene Patrizio (one of the defense trial attorneys) signed and served on the DeRungs counsel a designation of expert witnesses. Patrizio signed the exchange of expert witness information on behalf of his cocounsel, Barton Hegeler, in their capacity as "Attorneys for Defendant [Thompson] and [Medical Group ]." (Italics added.) In an attached declaration, Patrizio stated in part that he was "the attorney of record . . . for [Thompson] and [Medical Group]." (Italics added.)
By participating in formal expert witness discovery, Medical Group participated in a regular proceeding in the case and implicitly recognized the authority of the court to proceed. (Hamilton, supra, 22 Cal.4th at p. 1147; Chitwood v. County of Los Angeles (1971) 14 Cal. App. 3d 522, 527-528, 92 Cal. Rptr. 441 [holding that the answering of interrogatories is a regular proceeding in the case and constitutes a general appearance].)
Medical Groups general appearance was confirmed when Patrizio, on behalf of Medical Group, (1) participated in the preparation and filing of the joint trial readiness conference report (discussed, ante), and (2) signed the written stipulation on May 31 (also discussed, ante) admitting Medical Groups vicarious liability as Thompsons employer.
The record also shows that shortly before jury voir dire, Macaluso stated to the court that Medical Group had not appeared in the action and that Management had admitted liability as Thompsons employer. At Macalusos request, defense counsel then stipulated orally on the record that Medical Group was a defendant.
The following exchange occurred between Macaluso and defense counsel, Storm Anderson: "MR. MACALUSO: Well, then, I trust they stipulate now to bringing [Medical Group] as a defendant. Is that what theyre representing? [P] "MR. ANDERSON: We would stipulate that, exactly."
For all of the foregoing reasons, we reject the DeRungs contentions that Medical Group never generally appeared as a defendant in the instant action, that Hegeler and the other defense attorneys did not represent Medical Group, and that Medical Group never stipulated to its derivative liability as Thompsons employer.
C. Consent Judgment
The judgment in the instant case is not a consent judgment (as the DeRungs claim) because, although Medical Group stipulated to derivative liability, it did not stipulate to the amount of damages awarded against it, and thus the definition of a consent judgment in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400, 981 P.2d 79 (consent judgment is a "judgment entered by a court under the authority of, and in accordance with, the contractual agreement of the parties [citation], intended to settle their dispute fully and finally") is not met.
We conclude that Medical Group is a "party aggrieved" within the meaning of Code of Civil Procedure section 902, and thus has standing to appeal. Accordingly, the DeRungs motion to dismiss the appeal by "Scripps Clinic" is denied.
II. DEFENDANTS APPEAL
In their appeal, Thompson and Medical Group contend the portion of the judgment awarding $ 3.012 million to the DeRungs for future lost earnings should be reversed and the matter remanded for a new trial on grounds the court committed prejudicial error by excluding evidence (1) that Franco DeRungs was an alien who probably would have been deported within a year, and (2) of Franco DeRungss heart disease and alleged resulting reduction of his work life expectancy.
A. Standard of Review
"The trial court is vested with broad discretion in ruling on the admissibility of evidence," including the admissibility of expert testimony, and the courts ruling will constitute error only if there is a clear showing of an abuse of discretion. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.) ""The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason."" (Tudor Ranches, Inc., supra, 65 Cal.App.4th at p. 1431.) "Even where evidence is improperly excluded, the error is not reversible unless "it is reasonably probable a result more favorable to the appellant would have been reached absent the error."" (Id. at pp. 1431-1432.)
B. Exclusion of Evidence of Franco DeRungss Immigration Status
Thompson and Medical Group first contend the court committed prejudicial error by excluding evidence that Franco DeRungs was an alien who probably would have been deported within a year. We reject this contention.
1. Background
Franco DeRungss immigration status at the time of his death
As discussed more fully in the factual background portion of this opinion, ante, Franco DeRungs, who had come to the United States from Mexico, was legally employed in San Diego under a work visa at the time of his death in January 2000. He was the senior vice president in charge of the foreign exchange department at First National Bank. In November 1999, about two months before he died, Franco sought to extend his residency in the United States by applying for a national interest waiver of the labor certification requirement (hereafter referred to as a national interest waiver). That application was still pending at the time of his death.
The DeRungs successful in limine motions Nos. 7 and 8
Before trial, the DeRungs brought an in limine motion (No. 7) for an order excluding evidence of, and prohibiting the defense from mentioning, (1) Franco DeRungss immigration status, (2) his future earnings potential outside the United States, and (3) the cost of living in Mexico. The DeRungs also brought an in limine motion (No. 8) to exclude any testimony by Darryl Weiss, one of the defenses two designated economic damages experts, on the grounds that (1) his designation was duplicative, and (2) he was not qualified to give expert witness testimony on the issue of economic damages. The record shows that, in its designation of Weiss as an expert witness, the defense stated that Weiss was "an expert in the filed of international human resources and labor immigration."
In support of their in limine motion No. 7, the DeRungs relied on Rodriguez v. Kline (1986) 186 Cal. App. 3d 1145, 1148, 232 Cal. Rptr. 157, which held that "any question regarding a plaintiffs citizenship or lawful place of residence [is] one of law, to be decided exclusively by the trial court outside the presence of the jury." As the DeRungs pointed out, the Rodriguez court also held that "whenever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. [Citation.] At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation. If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the courts satisfaction that he has taken steps which will correct his deportable condition." (Id. at p. 1149, italics added.).
The DeRungs argued that Weiss would likely offer "improper and highly prejudicial" opinions that (1) Franco DeRungss application for a national interest waiver would have been denied, and (2) because he was a Mexican citizen, his earning potential should be calculated to reflect similar employment in Mexico. The DeRungs also argued that because Franco had a valid United States work permit at the time of his death, and he had worked for many years as a senior vice president in First National Banks foreign exchange department, he was not an "alien subject to deportation" within the meaning of the decision in Rodriguez, and thus the court should exclude all evidence relating to the issues of his alienage and whether he would have continued to maintain his work visa.
In their single opposition to both motions, the defense conceded that Franco DeRungs was lawfully in the United States at the time of his death and that under Rodriguez, supra, 186 Cal. App. 3d 1145, "the issue of legal status (vis a vis citizenship) is an issue of law, which will be decided in a hearing prior to trial." The defense claimed that the Rodriguez decision did not preclude evidence of Franco DeRungss immigration status because his legal status in the United States was only temporary, and Weiss had opined during his deposition testimony that it was "very unlikely" Franco DeRungss national interest waiver application would have been granted. In support of its opposition, the defense proffered Weisss deposition testimony as its offer of proof.
The transcript of Weisss deposition shows he gave the following testimony: [P] "Q. What are your opinions in this case? [P] "A. Based on the research that I did by speaking to Mr. Scalla, through Internet research, from my past experience in working on different visas and Labor Certifications, National Interest Waivers, through a review of Mr. DeRungs file, his employment file, the backup documentation that was given to him by — and those are the — the letters that are in Exhibit B — in my opinion, it is very unlikely that he would have achieved a National Interest Waiver; and also, in my opinion, because of the number of individuals out there in the market today, he would not have achieved a Labor Certification either."
The courts rulings
The court deferred its ruling on the DeRungs in limine motions. During trial, outside the presence of the jury, the court stated it had read the transcript of Weisss deposition testimony, and found that (1) Franco DeRungs was a foreign national who was in this country legally, who was "not obviously a deportable alien," and who was in the process of applying for a national interest waiver at the time of his death; (2) the defense had presented "no evidence . . . that would suggest that he would not have had that granted"; (3) there was "no basis" for Weisss "bare opinion" that Franco DeRungss application would have been denied; (4) there was "insufficient evidence for the jury to consider . . . whether or not he would have been deported" at some future time; (5) there was "no evidence that he was in a position where he would have been deported never to return," because Weiss had conceded that Franco could have obtained a new work visa if he left the country for a year; and (6) "the jury will consider Mr. DeRungs as if he were to remain in this country indefinitely."
2. Analysis
On appeal, the parties agree that the court essentially granted the DeRungs in limine motions Nos. 7 and 8 (discussed, ante) on the ground that the defenses offer of proof, which consisted of Weisss deposition testimony and his opinion that it was "very unlikely" that Franco DeRungss national interest waiver application would have been granted, was speculative. We conclude the court did not abuse its discretion by granting the motions on this ground.
The record shows that during trial on July 18, the court stated to counsel out of the presence of the jury that "we have a situation where [Franco] DeRungs is in the country legally, and I think it would amount to speculation to determine that he would have been deported to Mexico against his will." (Italics added.)
In Clemente v. State of California (1985) 40 Cal.3d 202, 219 Cal. Rptr. 445, 707 P.2d 818, a personal injury action in which the plaintiff had apparently entered the United States illegally, the California Supreme Court upheld the trial courts exclusion of evidence of the plaintiffs citizenship. (Id. at p. 221.) Noting that the plaintiff had been gainfully employed in this country and there was no evidence to show he intended to leave, the Clemente court rejected the defendants contention that such evidence was relevant to a determination of the plaintiffs claim for future loss of earnings, and concluded that "speculation that [the plaintiff] might at some point be deported was so remote as to make the issue of citizenship irrelevant to the damages question." (Ibid., italics added.)
Here, the record shows that Weiss testified during his deposition that "it used to be a lot easier to get national interest waivers" before the Board of Immigration Appeals decided the New York Department of Transportation case in 1998. Weiss also testified that this decision "changed the national interest waiver," and such waivers "are not granted as freely as they used to be" after the New York Department of Transportation decision was issued.
In In re New York Department of Transportation (Aug. 7, 1998) 1998 WL 483980, the United States Department of Justice Board of Immigration Appeals stated in part: "The petitioner seeking a waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien."
The speculative nature of Weisss testimony is shown by his admission during his deposition that he had handled only four national interest waiver applications, all of which were granted, but that "all four of my national interest waivers were before the New York Department of Transportation decision." (Italics added.)
The record also shows that Weiss conceded during his deposition testimony that although Franco DeRungss work visa was scheduled to expire in 2002, he could have obtained a new work visa if he left the United States for a year. Substantial evidence thus supports the courts finding that there was "no evidence that [Franco DeRungs] was in a position where he would have been deported never to return."
We conclude the court did not err by excluding evidence of Franco DeRungss immigration status, his earnings potential outside the United States, and the cost of living in Mexico.
C. Exclusion of Evidence of Franco DeRungss Heart Disease and Work Life Expectancy
Thompson and Medical Group also contend the court committed prejudicial error by excluding all evidence of Franco DeRungss heart disease and reduced work life expectancy. We conclude the court prejudicially abused its discretion, and thus Thompson and Medical Group are entitled to a new trial on the issue of damages.
1. Background
Designation and de-designation of Dr. Low
In March, Thompson and Medical Group designated Dr. Low, a board-certified cardiologist, as their "life expectancy" expert witness. They designated no other medical expert.
In May, Thompson and Medical Group de-designated Dr. Low as an expert witness. The DeRungs did not take Dr. Lows deposition.
The DeRungs successful in limine motions
The DeRungs brought several in limine motions to exclude any reference to Franco DeRungss heart disease and any resulting reduction in his work life expectancy. In their in limine motion No. 6, they moved to exclude all references at trial to the cause of Francos death, specifically, that he suffered a heart attack. The DeRungs asserted that any evidence of the cause of death was irrelevant because defendants had stipulated to liability and the only remaining issue was damages.
In their in limine motion No. 9, the DeRungs moved to preclude any mention that Franco DeRungs "had a pre-existing heart or other medical condition." They asserted that defendants had de-designated Dr. Low, and that Cary Mack, a certified public accountant (C.P.A.) the defense had designated as an expert on the issue of economic damages, should not be allowed to testify that Dr. Low had told him that Franco DeRungs had a preexisting heart condition.
In their in limine motion No. 10, the DeRungs moved to preclude any mention that Franco DeRungs would not have had a normal work life expectancy. Last, in their motion in limine No. 11, the DeRungs moved to exclude all references to any opinions or hearsay statements of Dr. Low, with whom Mack had consulted.
The court granted the DeRungs in limine motions to the extent Thompson and Medical Group did not have expert medical evidence to support their defense. As to Macks expert testimony, the court reasoned that he was not a medical expert; that as a C.P.A., "he doesnt need to rely on a doctor to do a C.P.A.s work"; and he would not be permitted to "give a medical opinion to the jury under the guise of hearsay."
Mrs. DeRungss testimony
On July 16, the first day of trial, Mrs. DeRungs testified as follows on direct examination that her husband never had any major or minor health problems that prevented him from working or living a normal, healthy life:
"Q. And before he came to the United States, did [Franco DeRungs] ever have any health problems?
"A. No.
"Q. When he was in El Paso, Texas, did he ever have any health problems that ever prevented him from working?
"A. No.
"Q. Let me ask again. When he was in El Paso, Texas, did he ever have any health problems that prevented him from working?
"A. No.
"Q. When he was here in California did he ever have any health problems that prevented him from working?
"A. No.
"Q. Were you aware of him ever having any major health problems or minor problems that prevented him from living a normal, healthy life?
"A. No."
The courts concerns about Mrs. DeRungss testimony and its denial of the defenses renewed evidentiary requests
In response to Mrs. DeRungss testimony, after the court excused the jury at the end of the afternoon session, the court asked whether counsel wanted to discuss anything. Defense counsel Anderson asked the court to revisit its ruling concerning Macks testimony (discussed, ante), and stated, "in light of what [Mrs.] DeRungs testified to concerning her husbands state of health, it seems to me the door has been opened."
Addressing the DeRungs attorney, Macaluso, the court asked, "You cant have it both ways, can you?" The court expressed concern about Mrs. DeRungss testimony, stating, "The jury now has his widow testifying that he had absolutely no health problems prior to his death and not only had no health problems, but never had any health problems major or minor that prevented him from working. [P] . . . [P] . . . But we know that he had a heart attack . . . . Its not like getting hit by a truck. [P] . . . [P] So he obviously had arterial sclerosis or some condition." (Italics added.)
The court also stated to Macaluso: "I was surprised that you asked the question and I think it was a question that does certainly create an inference that he was going to live to a hundred or . . . the picture that the jury has is of a healthy man in the prime of his life thats never had a major or minor illness, and what we do know is that he died of a heart attack, of a myocardial infarction, at an early age." (Italics added.) The court later acknowledged that Macaluso had "opened the door" regarding Franco DeRungss health, and stated, "Im not sure what were going to do."
The defense asked the court to (1) allow the testimony of Dr. Monica Pearlman, Franco DeRungss treating physician, about her percipient observations of his health problems, specifically that his cholesterol level was "in the 300s," he was a smoker, she had read the EKG, and he died as a result of heart disease; (2) admit into evidence Franco DeRungss medical records showing he had "high risk" cholesterol levels; (3) allow Mack to testify that Franco DeRungs had a shortened work life expectancy due to heart disease; and (4) cross-examine Mrs. DeRungs about her husbands cholesterol levels. The court refused defendants requests and Macalusos offer to stipulate to have the testimony stricken.
2. Analysis
The court prejudically erred by excluding the percipient witness testimony of Franco DeRungss treating physician, Dr. Pearlman. Thompson and Medical Group argue they wanted to call Dr. Pearlman to impeach Mrs. DeRungs, who had testified she was not aware of her husband "ever having any major health problems or minor problems that prevented him from living a normal, healthy life." As an offer of proof, defense counsel stated that Dr. Pearlman would testify that Franco DeRungss cholesterol level was "in the 300s," he was a smoker, she had read the EKG, and he died as a result of heart disease.
"The common law rule is that . . . a physician or other treating health care practitioner, who testifies regarding his or her knowledge of the patients treatment, diagnosis or prognosis, does not express an expert opinion." [Citations.] This is true whether the treating professional testifies only as to factual matters as to which any lay witness may testify (e.g., I observed that the patient sustained an injury to his right foot) or testifies as to the patients diagnosis, prognosis and causation of the injury, based on the knowledge gleaned by the professional at the time of the patients treatment and on the professionals experience in the particular field of expertise (e.g., The patients stress fracture of the second metatarsal will take three weeks to heal). [Citation.]" (Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 127, disapproved on other grounds in Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39-40, 989 P.2d 720.) The Plunkett court held that an expert witness declaration within the meaning of Code of Civil Procedure section 2034, subdivisions (a)(2) and (f)(2), is not required for a treating physician to provide testimony relating to the physicians treatment of a patient, including diagnosis and prognosis. (Plunkett v. Spaulding, supra, 52 Cal.App.4th at p. 126.)
Code of Civil Procedure section 2034, subdivision (a)(2) provides: "(a) After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each others expert trial witnesses to the following extent: [P] . . . [P](2) If any expert designated by a party under paragraph (1) is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under paragraph (2) of subdivision (f)."
Subdivision (f)(2) of that section provides: "(f) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of exchange. [P] . . . [P] (2) If any witness on the list is an expert as described in paragraph (2) of subdivision (a), the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain: [P] (A) A brief narrative statement of the qualifications of each expert. [P] (B) A brief narrative statement of the general substance of the testimony that the expert is expected to give. [P] (C) A representation that the expert has agreed to testify at the trial. [P] (D) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. [P] (E) A statement of the experts hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney."
Here, it is undisputed that Dr. Pearlman was Franco DeRungss treating physician. As already discussed, Mrs. DeRungs testified on direct examination that she was unaware her husband ever had any health problems that prevented him from working or living a normal, healthy life. Dr. Pearlmans anticipated testimony that Franco DeRungss cholesterol level was "in the 300s," he was a smoker, and he died as a result of heart disease was admissible under Plunkett, supra, 52 Cal.App.4th at page 126 as impeachment evidence. The record shows that Dr. Pearlman was listed as a percipient witness on the DeRungs own list of witnesses in the parties joint trial readiness conference report. Under Plunkett, she did not have to be designated by Thompson and Medical Group as an expert witness. As an impeachment witness, she did not have to be listed as a defense percipient witness in the joint trial readiness conference report. (Super. Ct. San Diego County, Local Rules, Div. II, appen. B, par. I ["Witnesses used solely for impeachment need not be listed" in the report].) The error in excluding Dr. Pearlmans testimony was prejudicial in that it would have supported a reasonable inference by the jury that Franco DeRungs had a reduced work life expectancy as a result of his heart disease. Such an inference was relevant to the issue of future lost earnings.
We also conclude the court prejudicially abused its discretion by denying defense counsels request to cross-examine Mrs. DeRungs. "A cross-examiner may bring out all the facts within the knowledge of a witness involving things testified to on direct and which are material to a thorough understanding of the testimony, or to elicit any matter which may tend to overcome, qualify or explain the direct testimony. [Citation.]" (Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal. App. 3d 503, 521, 241 Cal. Rptr. 916.) The court should have permitted Thompson and Medical Groups trial counsel to cross-examine Mrs. DeRungs regarding her knowledge about her husbands health, including his cholesterol levels, and whether he suffered from heart disease. As already noted, the court acknowledged the DeRungs had "opened the door" on these topics during her direct examination.
We conclude there is a reasonable probability the jury would have reached a result more favorable to Thompson and Medical Group had the court granted their requests to call Dr. Pearlman and cross-examine Mrs. DeRungs. (Tudor Ranches, Inc., supra, 65 Cal.App.4th at pp. 1431-1432.) Accordingly, the judgment must be reversed and the matter remanded for a new trial on the issue of damages.
In light of the foregoing conclusions, we do not reach defendants remaining claims of evidentiary error.
III. THE DERUNGS APPEAL
The DeRungs contend the court prejudicially erred by (1) denying the DeRungs new trial motion as to Management; (2) limiting liability for noneconomic damages to $ 250,000 under section 3333.2; (3) entering a judgment of dismissal in favor of Management; and (4) granting defendants motion to tax costs. For reasons we shall discuss, we conclude the court abused its discretion by denying the DeRungs new trial motion as to Management, in whose favor the court entered judgment. Although the remaining grounds for the DeRungs appeal are moot, we shall address their contention that MICRAs limitation of liability for noneconomic damages under section 3333.2 must be treated as an affirmative defense.
A. Denial of the DeRungs New Trial Motion
The DeRungs argued to the court in their motion for new trial, and again assert on appeal, that their failure to prove Managements independent liability at trial, which resulted in the entry of judgment in favor of Management, was the result of surprise, a statutory ground for new trial set forth in Code of Civil Procedure section 657, subdivision (3). They maintain on appeal that they were the "victims of surprise" because they were prevented from proving Managements independent liability when the court granted motion in limine No. 5 (discussed, post). As we shall explain, this issue arose out of the confusing and convoluted manner in which the parties referred to the corporate defendants in this matter.
Code of Civil Procedure section 657, subdivision (3) provides: "The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [P] . . . [P] 3. Accident or surprise, which ordinary prudence could not have guarded against." (Italics added.)
1. Background
In their complaint, the DeRungs alleged a cause of action for wrongful death based on negligence against Thompson, an entity they called "Scripps Clinic," and numerous fictitious "Doe" defendants. The complaint specifically alleged that during part of January 2000, Franco DeRungs "was under the care and treatment of defendants . . . and each of them," and that "said Defendants, and each of them, negligently attended, prescribed medication and drugs, treated, examined, diagnosed, failed to diagnose, observed, nursed, informed, failed to inform, warned, failed to warn, attended, supervised, entrusted, controlled, and cared for Franco DeRungs." The complaint further alleged that Franco DeRungs was injured and died as a proximate result of the alleged negligence of "Scripps Clinic" and Thompson. The allegations in the complaint thus show that the DeRungs sought to hold both Thompson and "Scripps Clinic" directly, not derivatively, liable for negligence.
Defense counsel Hegeler answered the complaint on behalf of Thompson, who was named in the complaint, and Management, which was not named, denying the allegations and alleging the affirmative defense that any noneconomic damages awarded against them were limited to the sum of $ 250,000 under MICRA (§ 3333.2). No answer was filed on behalf of "Scripps Clinic."
The DeRungs thereafter amended the complaint to substitute Medical Group in the place of one of the Doe defendants and served Medical Group with a copy of the summons, the complaint and the amendment to the complaint. As already discussed, Medical Group did not formally appear by filing an answer or doing any of the other things listed in Code of Civil Procedure section 1014 that constitute a general appearance, but it did make a general appearance by participating in formal expert witness discovery.
In February, Thompson and the DeRungs entered into a written stipulation that Thompson was negligent in the medical care he rendered to Franco DeRungs and that such negligence was the cause of his death. In early June, the DeRungs stipulated in writing that Thompson was an employee of Medical Group during the time he rendered medical care to Franco DeRungs. They also stipulated that Thompson had rendered that care in the course and scope of his employment, and thus Medical Group was also liable for the harm Thompson caused. Although the body of the written stipulation referred to Thompson and Medical Group as "defendants," defense counsel Hegeler signed the stipulation on behalf of Thompson only. The stipulation shows the parties contemplated holding Medical Group only derivatively liable as Thompsons employer, rather than directly liable for any negligence the complaint had alleged against the "Scripps Clinic" defendant.
Throughout the pretrial proceedings, the parties used different names in their court filings when referring to the "Scripps Clinic" defendant named in the complaint. They variously referred to that entity as "Scripps Clinic," Management and Medical Group, and sometimes referred to it by all three names in the same court document. For example, as already discussed, the complaint named "Scripps Clinic" as a defendant, but did not name Management; and the answer was filed on behalf of Management and Thompson, not on behalf of "Scripps Clinic." The body of the DeRungs July 6 trial brief stated that, "this case involves a medical malpractice wrongful death action against Defendants SCRIPPS CLINIC and [THOMPSON]" and asserted that "the Defendants have admitted liability by stipulation and the only remaining issue is damages." (Italics added.) That trial brief, however, also stated that "defendants" Thompson and Medical Group had admitted by stipulation that they were liable, and "there is no additional liability to be proven." (Italics added.) Hegeler signed the July 6 defendants trial brief on behalf of Management and Thompson, but the conclusion of that brief stated that "Scripps Clinic and [Thompson] concede that the [DeRungs] family has suffered a loss, and that they deserve to be compensated for that loss." (Italics added.)
Another example of the confusing manner in which the parties referred to the corporate defendants in this matter is the defenses July 6 motion in limine No. 5, which (as already noted) is at issue in this appeal. In that in limine motion, the defense successfully moved for an order precluding (among other things) evidence of "defendants negligence" on grounds the "defendants" had stipulated to negligence and causation with respect to the death of Franco DeRungs, and thus such evidence was not relevant. (Italics added.) Although the title of the motion and the signature line indicated that this motion was brought by Thompson and Management, the body of the motion papers confusingly stated that Thompson and Medical Group were the moving parties. The title of the case appearing in the caption of that in limine motion identified "SCRIPPS CLINIC" as one of the defendants. On July 16, shortly before jury voir dire, the DeRungs trial counsel (Macaluso) disputed that Medical Group had made a general appearance. After asserting that Management was liable for the harm caused by Thompsons negligence, Macaluso asked the defense to stipulate to "bring[] [Medical Group] as a defendant." Defense counsel Anderson stated he would so stipulate and told the court Medical Group was the only entity that was vicariously liable.
The record also shows that the DeRungs, through their trial counsel Macaluso, agreed before trial that the court would decide in posttrial proceedings the issue of the applicability of section 3333.2. The reporters transcript for July 16, the day trial commenced, shows that the following exchange occurred between the court and Macaluso shortly before voir dire:
"THE COURT: I think the defendants want — I think the objective is to cap the damages at the MICRA limit right now. Because it doesnt appear that thats going to be feasible.
"MR. MACALUSO: Right, I think its post-trial[,] but so that the jurys not confused, what we should do, theres two defendants. The defendant doctor and the employer with all parties reserving their right to sort it out after trial. . . ." (Italics added.)
The case was tried to a jury on the issue of damages only. Pursuant to the courts granting of the defenses motion in limine No. 5 (discussed, ante), the DeRungs presented no evidence of any independent negligence on the part of Management, and the defense presented no evidence to show that any of the defendants was a licensed health care provider within the meaning of section 3333.2 (see fn. 3, ante), which limits to $ 250,000 the amount of noneconomic damages that may be awarded against a licensed health care provider based on professional negligence. At trial, counsel for both sides referred to Thompson and "Scripps Clinic" as the only defendants and made no mention of either Medical Group or Management. There is no indication in the record that the DeRungs ever dismissed "Scripps Clinic."
2. Analysis
The DeRungs claim of "surprise" as a ground for their motion for a new trial as to Management arose from (1) the courts grant on July 12 of the defenses motion in limine No. 5, barring all evidence of negligence, based on the defenses argument that the "defendants" had stipulated to liability; and (2) the courts entry of judgment in favor of Management based on (a) the DeRungs failure to present evidence at trial establishing liability on the part of Management, and (b) the courts finding that defense counsel had made no judicial admissions pertaining to the alleged liability of Management. The DeRungs also complain that they were denied the right to conduct liability discovery, asserting that on May 24 the court denied their ex parte request to compel Thompsons deposition based on representations by defense counsel that "defendants" were stipulating to liability, and thus the taking of Thompsons deposition would not lead to the discovery of admissible evidence.
The convoluted procedural background (discussed, ante) shows that the DeRungs direct liability claim alleged against the "Scripps Clinic" entity in the complaint was not tried to the jury. We reiterate that in their complaint, the DeRungs alleged that "Scripps Clinic" was directly, not vicariously, liable as a result of independent negligence. The record shows that when the DeRungs sought to conduct liability discovery by bringing their ex parte motion to compel Thompsons deposition in May, the court denied that motion because the defense persuaded the court that the "defendants" had already admitted liability and thus the taking of Thompsons deposition would not lead to the discovery of admissible evidence. However, the identity of those "defendants" was unclear. Thompson and Management had answered the complaint, which had only named Thompson and "Scripps Clinic." Medical Group had been brought in as a Doe defendant through an amendment to the complaint, but it had not formally appeared by filing an answer or doing any of the other things listed in Code of Civil Procedure section 1014 (discussed, ante) that constitute a general appearance. Although in early February Thompson stipulated to liability as the primary tortfeasor in this matter, it is undisputed that Management never stipulated to liability in writing. The parties had not yet executed the written stipulation under which Medical Group admitted (in early June) that it was vicariously liable as Thompsons employer. There is nothing in the record to indicate that "Scripps Clinic" was ever voluntarily or involuntarily dismissed prior to trial.
As already discussed, the parties compounded the problem as to the identity of the defendants by referring to the "Scripps Clinic" defendant named in the complaint as Management in some court filings, as Medical Group in others, and by all three names in still others. The defenses motion in limine No. 5, the granting of which prevented the DeRungs from presenting any evidence of negligence at trial, confusingly referred to the corporate defendant as "Scripps Clinic," Management and Medical Group.
In this manner, both sides generated confusion as to the identity of the defendants. The result was a difficult-to-track morphing of the various defendants. On this record, we conclude the DeRungs were reasonably surprised within the meaning of Code of Civil Procedure section 657, subdivision (3), and the court prejudicially abused its discretion when it denied their motion for new trial on that ground. Accordingly, the judgment must be reversed and the matter remanded for a new trial.
B. Reduction of noneconomic damages under MICRA ( § 3333.2)
The DeRungs also challenge on numerous grounds the courts reduction under MICRA of the $ 1.5 million in noneconomic damages the jury awarded against Thompson and Medical Group. Specifically, the DeRungs contend the courts reduction of the noneconomic damages award to $ 250,000 under section 3333.2 in a posttrial proceeding constituted prejudicial error because (1) section 3333.2 is an affirmative defense that the defense must both plead, and prove at trial; (2) a defendants failure to plead and prove section 3333.2 at trial constitutes a waiver of that affirmative defense and the benefits of section 3333.2; (3) the applicability of MICRA is a question of fact for the jury, not a question of law for the court; (4) although Thompson and Management pleaded MICRA as an affirmative defense, Medical Group never filed an answer raising any affirmative defense; (5) because it is undisputed that none of the defendants offered any proof of the applicability of section 3333.2 at trial, Thompson and Management waived that defense; (6) the courts posttrial, prejudgment taking of judicial notice of Thompsons licensure did not cure the failure of proof at trial regarding the applicability of section 3333.2; and (7) defendants should have been judicially estopped from requesting judicial notice that Thompson was a licensed health care provider for purposes of MICRA because when the DeRungs sought to depose Thompson before trial, he successfully prevented such discovery by persuading the court that the deposition should not be allowed because he admitted liability.
The issue of whether the court erred by reducing the noneconomic damages under MICRA is technically moot in light of our conclusions that the judgment must be reversed and the matter remanded for a new trial. However, in the exercise of this courts discretion we address some of the DeRungs contentions on the merits because the court will have to rule on the applicability of section 3333.2 following remand given the admissions of liability by Thompson and Medical Group.
1. Background
As already discussed, the instant case was tried to a jury on the issue of damages only. It is undisputed that the DeRungs presented no evidence to the jury at trial of any independent negligence on the part of Management, and the defense presented no evidence at trial to show that any of the defendants was a licensed health care provider within the meaning of section 3333.2, subdivision (c)(1). The jury returned a special verdict that awarded to the DeRungs the sum of $ 188,000 in past economic damages, $ 3.012 million in future economic damages, and $ 1.5 million in noneconomic damages.
The text of section 3333.2, subdivision (c)(1) is set forth in footnote 3, ante.
In posttrial proceedings, prior to the entry of judgment, the court took judicial notice at the request of the defense that Thompson was a licensed physician at the time he negligently treated Franco DeRungs. The court found that Thompson was a licensed health care provider within the meaning of MICRA and reduced the noneconomic damages award to $ 250,000 under section 3333.2. The court also found that the DeRungs had offered no evidence at trial to establish liability for negligence on the part of Management, and the defense had not judicially admitted any such liability. The court entered judgment against Thompson and Medical Group in the amount of $ 3.45 million in damages.
2. Analysis
a. Waiver of the section 3333.2 affirmative defense
The DeRungs assert that section 3333.2 is an affirmative defense that the defense must plead and prove at trial, and failure to do constitutes a waiver of the benefits of that section. California courts have not decided this issue, although the Court of Appeal in Pressler v. Irvine Drugs, Inc. (1985) 169 Cal. App. 3d 1244, 1248, 215 Cal. Rptr. 807, referred to section 3333.2, without any analysis, as an affirmative defense. One commentator has observed that "some argue that the case of Pressler v. Irvine Drugs Inc. hints that the various provisions of MICRA must be pleaded as new matter or will be waived. A careful reading of that decision to find any such rule will elude most. No reported decision after MICRA in fact deals with the issue at all except Taylor v. United States [(9th Cir. 1987) 821 F.2d 1428]. There, the tribunal held that [section 3333.2], confining the amount of noneconomic damages a claim can recoup, was a statutory limitation on damages under the general body of tort law, was therefore not new matter, and required no affirmative defense to raise." (McDonald, 2 Cal. Medical Malpractice Law & Practice (1992) § 12.7, p. 74, fns. omitted.)
We need not, and do not, reach the issue of whether a defendant seeking the benefits of section 3333.2 is required to plead the statute or waive its benefits. Here, it is undisputed that Thompson and Management did plead section 3333.2 in their answer to the complaint as their second affirmative defense. Accordingly, we need not decide whether this court should follow the Ninth Circuits decision in Taylor v. United States, supra, 821 F.2d at page 1433, on which defendants rely.
b. The respondeat superior doctrine and California case law authority limit Medical Groups vicarious liability to the damages awarded against Thompson
We also need not, and do not, reach the issue of whether Thompsons employer, Medical Group, was licensed and eligible to receive the benefits of section 3333.2. In California it is well established that, in a respondeat superior case such as the instant one, the amount of damages awarded against an employee found liable as the primary tortfeasor determines the maximum amount of damages that may be awarded against an employer that is vicariously liable under the respondeat superior doctrine. (Mayhugh v. County of Orange (1983) 141 Cal. App. 3d 763, 770, 190 Cal. Rptr. 537; Campbell v. Security Pac. Nat. Bank (1976) 62 Cal. App. 3d 379, 387-388, 133 Cal. Rptr. 77; Ponce v. Tractor Supply Co. (1972) 29 Cal. App. 3d 500, 505, 105 Cal. Rptr. 628; Daniel v. Jones (1934) 140 Cal.App. 145, 147, 35 P.2d 198; see also this courts decision in Palmer v. Superior Court, supra, 103 Cal.App.4th at p. 972, which involved MICRA, & 29 Cal.Jur.3d (1986) Employer and Employee, § 123, p. 787 ["The liability of an employer and employee who are sued jointly in a respondeat superior case cannot be segregated . . .; thus the amount of compensatory damages awarded against the employee determines the amount for which the employer is liable" (fn. omitted)].) The DeRungs cite no decisional or statutory authority, and we are aware of none, that renders the foregoing rule inapplicable in a respondeat superior case such as the instant one that involves MICRA.
Here, the parties stipulated that Medical Group was liable as Thompsons employer. No evidence was presented at trial to show that Medical Group should be held directly liable notwithstanding its stipulated vicarious liability. Under the foregoing authorities and the respondeat superior doctrine, the amount of damages, including noneconomic damages, that could be awarded against Medical Group as Thompsons employer was thus limited to the amount of damages awarded against Thompson. Following remand of this matter for a new trial, Medical Group will be entitled to the benefit of the limitation of noneconomic damages under section 3333.2 if Thompson again proves he qualifies for MICRA protection.
c. Application of section 3333.2
The DeRungs also contend the applicability of MICRA is a question of fact for the jury, not a question of law for the court. We reject this contention.
Application of section 3333.2 may in some cases require resolution of factual issues. (Taylor v. United States, supra, 821 F.2d at p. 1433.) For example, as the Taylor court observed, "a plaintiff suing a hospital for injuries arising out of separate acts of ordinary and professional negligence may obtain a lump sum award for noneconomic damages in excess of $ 250,000. Application of [section] 3333.2 may depend on the portion of noneconomic damages attributable to professional negligence compared to the portion attributable to ordinary negligence." (Ibid., fn. 3.) As occurred here, there may also be a factual dispute as to whether a defendant is a licensed "health care provider" within the meaning of section 3333.2, subdivision (c)(1).
The text of section 3333.2, subdivision (c)(1) is set forth in footnote 3, ante.
Where the applicability of section 3333.2 depends on the determination of a question of fact, that question ordinarily must be decided by the trier of fact, subject to the courts authority to take judicial notice of certain matters pursuant to Evidence Code section 450 et seq. When such factual questions have been decided, the determination of whether the MICRA protections afforded by section 3333.2 apply, and the manner in which that section is to be applied, are questions of law that must be decided by the trial court.
"Special methods for computing noneconomic damages must be employed if the jury finds the plaintiff to be comparatively negligent, or if multiple defendants are held liable for noneconomic damages. If the plaintiff is comparatively negligent, the court must, before applying [section] 3333.2, reduce the jurys noneconomic damage award by the percentage of the plaintiffs fault. If what remains exceeds $ 250,000, the award is further reduced to that amount." (36 Cal. Forms of Pleading & Practice (Matthew Bender) Physicians, p. 53, italics added, citing Atkins v. Strayhorn (1990) 223 Cal. App. 3d 1380, 1391-1393, 273 Cal. Rptr. 231 & McAdory v. Rogers (1989) 215 Cal. App. 3d 1273, 1276-1281, 264 Cal. Rptr. 71.) "With respect to multiple defendants, Proposition 51 ([ §§ ] 1431-1341.5) requires, in actions for personal injury and wrongful death, that noneconomic damages be apportioned severally, according to comparative fault; consequently, the $ 250,000 cap on noneconomic damages under [section] 3333.2 must be applied to a noneconomic damage award before reduction of noneconomic damages based on each defendants share of comparative fault." (36 Cal. Forms of Pleading & Practice, supra, at p. 53, citing Gilman v. Beverly California Corp. (1991) 231 Cal. App. 3d 121, 126-130, 283 Cal. Rptr. 17 & § 1431.2, subd. (a).)
Here, in posttrial proceedings, at the request of the defense, the court took judicial notice that Thompson was a licensed physician at the time he negligently treated Franco DeRungs. The court found that Thompson was a licensed health care provider within the meaning of MICRA, and therefore he was entitled to the benefit of the $ 250,000 limitation on noneconomic damages set forth in section 3333.2. The DeRungs remaining contentions regarding the propriety of the courts reduction of the noneconomic damages award under MICRA are moot.
C. The DeRungs remaining grounds for appeal are moot
The DeRungs also appeal on two other grounds. First, they contend the court prejudicially erred by entering a judgment in favor of Management. Second, they contend the court prejudicially erred by granting defendants motion to tax costs, which they claim was untimely and legally insufficient. In light of our decision that the judgment must be reversed and the matter remanded for a new trial, we conclude these additional grounds for appeal are moot.
Specifically, the DeRungs assert the judgment, which resulted in Managements dismissal, was based on (1) the courts erroneous ruling that defense counsel made no admissions that Management was liable, and (2) the courts "factually accurate" but "untenable" ruling that the DeRungs offered no evidence at trial to establish that Management was independently negligent. The DeRungs claim that Medical Group, one of the defendants against which judgment was entered, never appeared in the action, and thus had no attorney of record and could not have stipulated to liability.
DISPOSITION
The judgment is reversed and the matter is remanded for a new trial consistent with this opinion. The DeRungs motion to dismiss the appeal of "Scripps Clinic" is denied. The parties shall bear their own costs on appeal.
WE CONCUR: HALLER, J., and MCCONNELL, J.