Opinion
H042640
06-19-2018
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. M102561)
Jenovie V. Valdez gave birth to her daughter Emma in 2008. Shortly after her birth, it was discovered that Emma suffered from brain damage. To this day, Emma requires specialized care and treatment. She cannot walk, talk, or feed herself. Valdez and Emma, through her guardian ad litem Luis Valdez (collectively, "appellants"), initiated a medical malpractice suit against respondent Dr. Daniel A. Jardini, the physician who delivered Emma. Appellants alleged that respondent was negligent during Valdez's labor and delivery, and his negligence caused Emma's injuries. Following a trial, the jury returned a verdict finding respondent negligent but also finding that his negligence did not cause Emma's injury.
On appeal, appellants argue the trial court erred when it permitted one of respondent's experts to testify about an MRI of Emma's brain taken in 2012 and when it prohibited appellants from posing a hypothetical question to their expert neuroradiologist. For the reasons set forth below we reject appellants' claims of error and affirm the judgment.
BACKGROUND
As previously indicated, the jury returned a special verdict finding respondent negligent but also finding that his negligence was not a substantial factor in causing Emma's injuries. Appellants do not challenge the jury's finding that respondent was negligent. We therefore focus our recitation of the facts on the disputed issue of causation.
On November 19, 2009, appellants initiated a lawsuit by filing a complaint alleging medical malpractice. Initially, the complaint included as defendants respondent, several other physicians, and the hospital where Emma was delivered. By the time the case proceeded to trial in 2015, respondent was the only remaining defendant.
1. The Trial
a. Overview of the Parties' Theories of Causation and Liability
At trial, appellants argued that Emma suffered a hypoxic ischemic brain injury during labor. Hypoxia is inadequate or insufficient oxygenation of blood to an organ. Ischemia is inadequate blood supply. In essence, appellants theorized that Emma was deprived of oxygen during her birth, and respondent's failure to appropriately monitor Valdez caused Emma's injuries. Respondent, however, argued Emma sustained an injury sometime prior to labor, which resulted in cystic encephalomalacia. Cystic encephalomalacia is a "dead brain irregularly replaced by fluid," and presents itself as brain tissue with holes in it. According to multiple medical experts that testified at trial, cystic encephalomalacia is visible on images such as an MRI only if it is an older injury. Thus, some of the expert testimony at trial focused on whether images taken of Emma's brain shortly after her birth showed cystic encephalomalacia. If so, then Emma's injuries could not have been sustained during labor.
b. Emma's Delivery
In 2008, Valdez, then 17 years old, became pregnant with Emma. She received prenatal care from respondent during her pregnancy, and respondent conducted both physical examinations and ordered ultrasounds, none of which revealed any abnormalities.
Around 3:00 or 4:00 a.m. on November 25, 2008, Valdez called her mother, Kim Neff, and told her she was experiencing contractions. Neff took Valdez to the hospital. Hospital staff placed a fetal monitoring strip on Valdez's stomach and conducted a pelvic exam. Valdez and Neff were told to go home and come back when Valdez experienced more contractions. Respondent did not call or follow up with Valdez and did not see Valdez at the hospital.
At around 10:00 or 10:30 a.m. that same day, Valdez called Neff again and told her she was experiencing strong labor pains. Neff drove Valdez to the hospital a second time. This time, Valdez was admitted. Respondent was not at the hospital, and nurses left him several messages, which he did not receive until 1:30 p.m. that day. Respondent came to check on Valdez at around 3:00 or 4:00 p.m. that afternoon. He performed a pelvic exam and left after 10 minutes. After respondent left, Valdez requested and received an epidural to relieve her pain. By that time, respondent was no longer at the hospital.
Initially, there were issues surrounding the administration of the epidural, because the anesthesiologist wanted to know the identity of respondent's backup physician at the hospital.
At around 6:50 a.m. the following morning, respondent, who was still not at the hospital, became aware that Valdez was 10 centimeters dilated and 100 percent effaced. At around 7:00 or 8:00 a.m., Valdez was instructed to begin pushing, pursuant to respondent's order. Neff had not seen respondent examine Valdez since his visit from the previous day. Respondent arrived approximately an hour after Valdez started pushing. At that time, respondent said he determined Emma's descent through the birth canal was abnormal.
Respondent left the room to notify personnel he was about to perform a vacuum procedure. When he returned, he went straight to Valdez, applied the vacuum, and delivered Emma in one pull. Neff described that Emma was born purple, limp, and lifeless. Her umbilical cord was wrapped around her ankle. Emma was given to a respiratory therapist, who attempted to revive her. She was later taken to the neonatal intensive care unit. Afterwards, hospital staff told the family that Emma had suffered some type of brain trauma and had brain damage.
c. Emma's Postdelivery Care
Dr. Carl Yaeger treated Emma for the first few days following her birth, between November 26 through November 30, 2008. Dr. Gregory Glasscock, a neonatologist, took over for Dr. Yaeger and saw Emma on December 1, 2008. Dr. Glasscock reviewed Dr. Yaeger's notes. From Dr. Yaeger's notes, Dr. Glasscock summarized that Emma had been born "post significant fetal distress," and that it was "[p]ossible secondary to umbilical cord wrapped around the infant's leg resulting in hypoxic ischemic encephalopathy." According to Dr. Yaeger's notes, Emma's fontanel, the soft spot on her skull, appeared open, slightly full, but not bulging on the second day of life. Dr. Glasscock confirmed that an ultrasound of Emma's head showed swelling, which was consistent with Dr. Yaeger's description that Emma's fontanel was slightly full. She also suffered from mild tremors.
"Encephalopathy" is defined by the Oxford English Dictionary as "[d]isease of the brain in general." ("encephalopathy, n." OED Online. Oxford University Press. <http://www.oed.com/view/Entry/61641> [as of Feb. 14, 2018].)
Shortly after assuming Emma's care, Dr. Glasscock spoke with the family about issues associated with hypoxic ischemic brain injuries. He expressed concerns about Emma's condition and the possibility that she had permanent brain damage. At the time, he believed something may have happened to Emma during her delivery. Dr. Glasscock based this conclusion partly on Dr. Yaeger's notes, which stated that he believed Emma may have had a "hypoxic ischemic, or, possibly, total anoxic episode, prior to the delivery." He also considered the results of an MRI of Emma's brain that had been taken several days after her birth.
At trial, Dr. Glasscock demurred on his initial impressions. He explained the findings at delivery "were not consistent with a firm diagnosis of hypoxic ischemic encephalopathy at birth," and Emma could have suffered hypoxia or ischemia "in utero way before the delivery." Dr. Glasscock said that although he could not disagree with the diagnosis of a hypoxic ischemic injury, he could not support the implication that the injury definitely occurred during Emma's birth.
d. Appellants' Experts
i. Dr. Barry Schifrin, Appellants' Expert Obstetrician/Gynecologist
Dr. Barry Schifrin was retained by appellants as an expert obstetrician/gynecologist, maternal fetal medicine specialist, and expert in reading and interpreting fetal heart rate monitoring strips. Dr. Schifrin believed respondent had provided Valdez with substandard care by making an inappropriate assessment on the feasibility of a safe vaginal delivery, failing to pay attention to the fetal monitoring strip, and failing to obtain Valdez's informed consent for the potentially dangerous vacuum procedure.
Dr. Schifrin opined that respondent's negligence caused Emma to be depressed at birth and was a substantial factor in Emma's resulting brain damage, which resulted from a partial, prolonged asphyxiation during labor and delivery. Based on the fetal monitoring strips, he believed Emma was injured sometime between 8:00 a.m. and 8:58 a.m. the morning of her delivery. This timeframe was consistent with the injury being sustained during Emma's delivery.
ii. Dr. Barry Pressman, Appellants' Expert Neuroradiologist
Dr. Barry Pressman, a neuroradiologist, testified on appellants' behalf. He examined Emma's medical records, including an ultrasound of her brain dated November 28, 2008, and an MRI of her brain dated November 29, 2008. Dr. Pressman believed Emma had suffered a hypoxic ischemic brain injury, which caused a large area of brain death. Based on the ultrasound, he believed the injury occurred at least 12 hours before the ultrasound but no more than five days before the ultrasound. In other words, Dr. Pressman believed the brain injury occurred sometime between November 23, 2008 and late on November 27, 2008. According to this timeframe, Dr. Pressman opined the injury was consistent with an injury sustained during labor and delivery. He believed Emma's brain injury had a "partial prolonged pattern," meaning it was caused by persistent or intermittent reduction in the blood or oxygen supply to the brain.
The ultrasound showed Emma had a bilateral edema, or excess fluid, in her brain. There was swelling on both sides of the brain, but the swelling was more severe on the left side compared to the right side. The MRI also showed brain damage. There were large areas of whiteness on both sides of Emma's brain, which indicated those portions of her brain had died sometime within the preceding week.
Dr. Pressman explained that he inferred the timing of Emma's injury based on his knowledge of the typical development of a hypoxic ischemic injury. Usually, after that type of injury, an edema starts to swell, reaches a peak at about two or three and a half days postinjury, and will recede and begin to level off at around five days. Emma's injury was asymmetric, but there was injury on both sides of her brain. The asymmetrical nature of her injuries did not change Dr. Pressman's diagnosis. Dr. Pressman believed the injury was not old, because if it was there would have been shifting or pulling of the brain tissue toward the side of the injury, and the brain swelling would have already receded. Dr. Pressman opined that there was no evidence of "cystic encephalomalacia" based on Emma's ultrasound, which is a "dead brain irregularly replaced by fluid."
At trial, appellants' attorney attempted to ask Dr. Pressman a hypothetical question about his conclusions based on Emma's ultrasound. Appellants' attorney asked him if the development of a hypoxic ischemic injury was consistent with the findings made by Emma's treating physicians about the condition of her fontanel in the days following her birth. Respondent objected to the question as lacking foundation, which the court sustained.
iii. Dr. Perry Lubens, Appellants' Expert Pediatric Neurologist
Dr. Perry Lubens, appellants' expert pediatric neurologist, testified about the handicaps and challenges that Emma faces in her daily life. Emma cannot speak and has vision problems. She cannot walk or sit herself up. She has cerebral palsy with total body involvement and must be fed by a tube that goes into her stomach. She has a seizure disorder that is partially controlled by medicine, and she has severe scoliosis.
Dr. Lubens believed Emma's condition was caused by a decrease in blood and oxygen to her brain. Dr. Lubens defined cystic encephalomalacia as a cavity that develops in a newborn's brain if there has been an injury. He acknowledged that appellants' and respondent's experts had conflicting opinions about whether the 2008 MRI showed cystic encephalomalacia. The presence of cystic encephalomalacia is vital to determining the timing of the injury, because if cystic encephalomalacia was present on Emma's MRI, the injury must have been older since it takes at least a week for it to be visible on an MRI.
e. Respondent's Experts
i. Dr. Paul Fisher, Respondent's Expert Pediatric Neurologist
Dr. Paul Fisher, an expert in pediatric neurology, testified on respondent's behalf. He opined that Emma suffered a subacute injury to her brain around seven, 10, or more days before she was born. Dr. Fisher reached this conclusion after examining Emma's medical records, including physical and neurological examinations, and the images taken of her brain.
Dr. Fisher explained how he reached his conclusion. After birth, Emma's blood gas did not show significant signs of acidosis, which would be typical if an infant suffered from some type of catastrophic birth injury. Her Apgar scores were quite good. There was also no evidence that Emma suffered from temporary end-organ damage. Emma also began to feed several days after she was born, which tended to show she was recovering from an earlier event.
Emma did not have early onset seizures, which made it unlikely that her injury was acute. Dr. Fisher also observed that Emma had an ear malformation, which raised the question of whether her condition could be partially caused by genetics. According to Dr. Fisher, the genetic screening Emma had previously gone through was insufficient to identify the ear abnormality or any other genetic anomaly that may explain her current condition. He also believed the 2008 MRI showed cystic encephalomalacia, which would not be visible until a week or two after an injury.
To a reasonable medical probability, Dr. Fisher believed Emma's injury was caused by an infection, inflammation, developmental issues, or genetics.
ii. Dr. Francis Blankenberg, Respondent's Expert Pediatric Radiologist
Dr. Francis Blankenberg, an expert in pediatric radiology, examined Emma's medical records, including the 2008 MRI. He believed Emma suffered an asymmetric brain injury that occurred at least a week or, more likely, two weeks before the 2008 MRI was taken.
Over appellants' objection, Dr. Blankenberg was asked about an MRI of Emma's brain taken in 2012. A sidebar discussion, which was not transcribed, was held between the court and counsel. On the record, appellants' attorney asserted that the 2012 MRI was irrelevant, because it did not show what happened within days of Emma's labor and delivery, and the introduction of the 2012 MRI would be "unfair and . . . prejudicial." The court overruled appellants' objection and permitted Dr. Blankenberg to testify about the 2012 MRI.
Dr. Blankenberg explained the 2012 MRI showed the left side of Emma's brain was mostly fluid, with no identifiable brain parenchyma, the actual substance of brain tissue. The right side of Emma's brain was atrophic, but there was a right frontal lobe and a little bit of a central lobe.
Next, Dr. Blankenberg turned to the 2008 MRI, which was taken several days after Emma's birth. The 2008 MRI showed a normal-appearing right side of the brain and an abnormal left side of the brain. Dr. Blankenberg believed the 2008 MRI showed cystic encephalomalacia on the left side of Emma's brain, which would take at least a week to form. He also believed the 2008 MRI showed Emma suffered from an "acute-on-chronic injury," which presented itself in a complex pattern on the MRI. The cystic encephalomalacia seen on Emma's 2008 MRI was most likely present for at least two weeks before the MRI was taken.
Dr. Blankenberg analogized cystic changes in a brain to a cavity in a tooth. A cavity takes time to develop, the immune system responds, and bacteria destroys the tissue. Similarly, with cystic changes to a brain, there are dead brain cells, but the dead brain cells do not go away by themselves. The dead brain cells are disintegrated by the body's immune system, effectively removing the tissue.
According to Dr. Blankenberg, the asymmetrical nature of Emma's brain injury also made it unlikely the injury occurred during labor and delivery. Dr. Blankenberg explained that lack of oxygen affects both sides equally.
Dr. Blankenberg opined the 2012 MRI was "helpful" to show what happened later on with Emma's brain, and it corroborated his findings from the 2008 MRI. Dr. Blankenberg explained the absence of brain tissue on Emma's left side, as depicted in the 2012 MRI, was the result of the cystic encephalomalacia that was seen on the 2008 MRI. However, Dr. Blankenberg noted the damage could have been predicted even without the 2012 MRI.
iii. Dr. Michael Nageotte, Respondent's Expert Obstetrician
Dr. Michael Nageotte was retained by respondent to testify as an expert in obstetrics. He believed Emma did not suffer a brain injury during labor and delivery. He noted that Emma did not have acidosis in her blood gas, her Apgar scores were inconsistent with an acute injury, there was no evidence she had liver, kidney, heart, or intestinal injury, and she did not have early onset seizures. The asymmetrical nature of Emma's injury also did not support appellants' theory that she was injured during labor. Injury during labor is typically symmetrical, because blood goes to both sides of the brain.
Dr. Nageotte did not believe there was evidence that Emma suffered a prolonged partial asphyxia. He also did not see evidence of an acute profound event causing asphyxia on the fetal monitoring tracing strip. Lastly, he did not see evidence of unusual cord compression during labor.
iv. Dr. Gilbert Martin, Respondent's Expert on Neonatology
Dr. Gilbert Martin testified on respondent's behalf as an expert on neonatology. He reviewed Emma and Valdez's medical records and believed to a reasonable degree of medical probability that Emma's injury did not occur during labor and delivery.
Dr. Martin asserted that there was asymmetric growth in Emma's brain, which preceded labor. Dr. Martin also noted that Emma had not been screened to rule out genetic causes. Additionally, Emma's Apgar scores after birth did not reflect she suffered an injury during labor. There was no evidence of acute profound asphyxia or profound prolonged asphyxia. There was no sudden change in Emma's fetal heartrate, and there was no redistribution of blood from other organs to the brain. Although Emma was born with a cord wrapped around her leg, he did not believe this caused her injury. The absence of seizures was also incompatible with a diagnosis of an acute event occurring during labor and delivery.
v. Dr. Jeffrey Phelan, Respondent's Expert Obstetrician/Gynecologist and Maternal-fetal Medicine Specialist
Dr. Phelan's testimony was not initially included with the record on appeal. Respondent requested we augment the record with a transcript of the deposition, which we previously granted.
Dr. Jeffrey Phelan, an expert in obstetrics/gynecology and perinatology, did not personally appear at trial. His testimony was presented by a videotaped deposition, which was played to the jury.
First, Dr. Phelan opined that respondent's treatment of Valdez and Emma met the standard of care of what a reasonably careful obstetrician would have done under similar circumstances. He believed it was reasonable for respondent to discharge Valdez the first time she went to the hospital, because she was not in labor at the time and the fetal heart tracing strip showed Emma was "a normal, healthy child."
Dr. Phelan assessed the fetal monitoring strip through Valdez's labor and determined there was nothing on the strip that indicated Emma was in trouble. Thus, he opined that Emma's injury was not sustained during labor. Emma did not show signs of acid build-up following delivery, and her organs were functioning relatively normally. She also did not have any early onset seizures, which would be typical of children who develop cerebral palsy from asphyxia. Asphyxia also typically produces bilateral disease, but it was Emma's left side of the brain that was primarily affected. Dr. Phelan believed Emma must have suffered an injury to her brain more than three or five days before November 25, 2008. He also believed there was no evidence of injury related to respondent's use of a vacuum to deliver Emma.
2. The Verdict
On April 28, 2015, the jury returned a special verdict in favor of respondent, finding that respondent was negligent in his medical care and treatment of Valdez but that his professional negligence was not a substantial factor in causing harm to appellants. The trial court entered judgment in favor of respondent on May 27, 2015.
On May 28, 2015, the trial court granted respondent's motion for a nonsuit on appellants' cause of action for lack of informed consent of respondent's use of a vacuum during Valdez's delivery.
3. Motion for a New Trial or a Judgment Notwithstanding the Verdict
On May 27, 2015, appellants filed a notice of intent to file a motion for a new trial or, in the alternative, a motion for judgment notwithstanding the verdict. In part, appellants argued the trial court erred in admitting Dr. Blankenberg's testimony about the MRI of Emma's brain taken in 2012, because his opinions on the MRI went beyond the scope of his deposition. Appellants also argued the trial court erred when it precluded appellants from posing their hypothetical question to Dr. Pressman.
During the hearing on the motion for a new trial or judgment notwithstanding the verdict, appellants acknowledged the 2012 MRI was not new evidence and they were fully aware of the existence of the MRI.
Attached as one of the exhibits to the motion was a declaration of a juror. The juror stated the deliberations regarding causation mainly revolved around the 2012 MRI. Some jurors believed the lack of brain tissue on the 2012 MRI confirmed Emma's injury was either old or that it was cystic, which would explain the tissue disintegration. Some jurors also believed that appellants' objection to the 2012 MRI was proof that they were hiding something from the jury; thus, Dr. Blankenberg's testimony about the 2012 MRI must have been factually true.
On June 23, 2015, the trial court denied appellants' motion for a new trial or a judgment notwithstanding the verdict. The trial court specifically found Dr. Blankenberg's testimony on the 2012 MRI did not exceed the scope of his deposition, because he used it to corroborate the opinion that he gave in his deposition. The court also found the 2012 MRI was not new evidence, because appellants were well-aware of the existence of the 2012 MRI and its findings and had ample opportunity to prepare a rebuttal despite it not appearing on an exhibit list. The court determined the juror's declaration about Dr. Blankenberg's testimony to be inadmissible, because the declaration contained the subjective reasoning of unidentified jurors and how they allegedly reached their verdict on causation. The court further found it did not err when it precluded Dr. Pressman's answer to appellants' hypothetical question about brain swelling, because Dr. Pressman stated he was not a clinician and could not offer opinions on such matters.
DISCUSSION
Respondent argues appellants provided an incomplete, one-sided statement of facts in their opening brief. Appellants' brief only includes a brief summary of respondent's evidence from the trial—Dr. Blankenberg's testimony. There is no mention of any other testimony from respondent's other expert witnesses. Respondent also asserts appellants' summary of Dr. Blankenberg's testimony is skewed. Respondent is correct that an "appellant must fairly set forth all the significant facts, not just those beneficial to the appellant." (In re S.C. (2006) 138 Cal.App.4th 396, 402.) An opening brief must "[p]rovide a summary of the significant facts limited to matters in the record." (Cal. Rules of Court, rule 8.204(a)(2)(C).) Despite appellants' record deficiencies, we find respondent has adequately provided a summary of the additional expert witnesses that testified at trial.
Additionally, respondent notes that appellants failed to include a transcript of Dr. Phelan's testimony in trial, which was presented by a videotaped deposition played to the jury. Thus, respondent claims appellants provided an incomplete record on appeal. Respondent, however, moved to augment the record with the transcript of Dr. Phelan's testimony. Thus, we have had the opportunity to review Dr. Phelan's testimony, and the record is sufficient for appellate review.
Appellants raise two arguments pertaining to the trial court's admission and exclusion of evidence. First, appellants argue the trial court erroneously permitted Dr. Blankenberg, respondent's expert, to testify about Emma's 2012 MRI. Second, appellants claim the trial court erred when it prohibited their expert, Dr. Pressman, from answering a hypothetical question about whether the 2008 ultrasound was consistent with the swelling of Emma's fontanel that was observed by her treating physicians around the time of her delivery.
1. Admission of the 2012 MRI Evidence
a. Forfeiture
Appellants claim the trial court erroneously permitted Dr. Blankenberg to testify about the results of Emma's 2012 MRI. Appellants argue Dr. Blankenberg's testimony on the 2012 MRI constituted new opinions that were not disclosed during his deposition. Respondent argues appellants have forfeited this argument on appeal, because they failed to make a timely and specific objection on this ground below. We agree with respondent.
As a general rule, "challenges to the admission of evidence must be preserved for appellate review with a timely and specific objection at trial." (People v. Seumanu (2015) 61 Cal.4th 1293, 1328; Evid. Code, § 353, subd. (a).) " 'While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the [other party the] opportunity to establish its admissibility.' " (People v. Holt (1997) 15 Cal.4th 619, 666-667.)
When respondent's attorney asked Dr. Blankenberg about the 2012 MRI, appellants objected and requested a sidebar discussion. The sidebar discussion was not transcribed. When Dr. Blankenberg's direct examination resumed, he was asked about the 2012 MRI over appellants' objection. At that time, appellants made the following statements on the record: "Your Honor, again, we would object, Your Honor, because this shows the brain of Emma four years after the fact. It does not show what happened within three days of the birth, which is the MRI that we've been dealing with. And we believe that it's unfair and it's prejudicial. And we make that objection."
We disagree with appellants' assertion that their objection to the 2012 MRI as being "unfair" and "prejudicial" was sufficiently specific. This vague objection does not inform the trial court of the exact basis of why the evidence should be excluded. It is possible appellants made a more specific objection during the sidebar discussion with the court. However, the sidebar discussion was not transcribed, and appellants did not make any additional statements on the record memorializing the contents of the discussion. To preserve the issue for appeal, it was incumbent on appellants to make an adequate record to enable appellate review of the trial court's ruling. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Appellants' failure to do so forfeits their claim.
Regardless, even assuming appellants did not forfeit their claim, we would find no reversible error.
b. Overview and Standard of Review
"[W]e review the trial court's ruling on the admissibility of expert testimony for an abuse of discretion." (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 25.)
Code of Civil Procedure section 2034.210, subdivision (a) provides that any party can demand a "mutual and simultaneous exchange by all parties of a list containing the name and address of any" expert witness expected to testify at trial. " ' "[T]he general substance of the testimony which the witness is expected to give" must be disclosed upon proper request. 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." ' " (Easterby v. Clark (2009) 171 Cal.App.4th 772, 778 (Easterby).)
"When 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." (Jones v. Moore (2000) 80 Cal.App.4th 557, 565 (Jones).) "[A] party's expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony." (Easterby, supra, 171 Cal.App.4th at p. 780.)
c. The Trial Court Did Not Err in Admitting Testimony About The 2012 MRI
The admissibility of expert witness testimony that diverges from an expert's deposition has been discussed in a number of cases.
In Jones, supra, 80 Cal.App.4th 557, an expert in a legal malpractice action testified in a deposition as to specific areas where the defendant's representation of the plaintiff fell below the standard of care. (Id. at p. 563.) The expert specifically stated he did not anticipate doing further work on the matter to arrive at any other opinions, but if he did he would notify the defendant in advance. (Ibid.) At trial, the expert was asked about an additional reason why the defendant's actions may have fallen below the standard of care, which was not previously discussed in the expert's deposition or declaration. (Id. at p. 564.) The trial court in Jones excluded the expert's testimony, which the appellate court found to be appropriate. The appellate court noted that the plaintiff's expert witness declaration was arguably broad enough to encompass the testimony sought at trial. However, the expert had specifically testified as to certain specific opinions, said those were his only opinions, and told defense counsel he would notify them if he had any other opinions. (Id. at pp. 564-565.)
Appellants argue that Jones is dispositive, and Dr. Blankenberg, like the expert in Jones, exceeded the scope of the opinions set forth in his deposition and his declaration. Appellants generally summarize these new opinions and testimony as finding that Emma's left side of the brain lacks actual brain substance based on the 2012 MRI.
In his declaration, which was prepared on January 11, 2011, Dr. Blankenberg specifically stated he had reviewed the following medical records for the case: "CD of imaging studies from Salinas Valley Memorial Hospital," the MRI report prepared by Dr. Barnes on January 17, 2009, and the consult report prepared by Dr. Glasscock on November 11, 2009. Additionally, Dr. Blankenberg's declaration specifically set forth his opinion that the damage to Emma's brain depicted on the 2008 MRI was the result of an injury that occurred 10 to 14 days before her birth, and the 2008 MRI showed cystic encephalomalacia. Unsurprisingly, Dr. Blankenberg's declaration contained no mention of the 2012 MRI. His declaration was prepared before the 2012 MRI had been taken.
Dr. Blankenberg was deposed on March 5, 2015, well after the 2012 MRI was taken. During his deposition, he asserted he would not render any additional opinions other than the ones contained within his declaration. The 2012 MRI was not mentioned during Dr. Blankenberg's deposition. The 2012 MRI was also not listed on respondent's exhibit list, which was prepared for trial and dated April 3, 2015. The 2012 MRI, however, was not new evidence to appellants. Appellants' counsel even admitted they knew it existed. In fact, appellants are the ones who arranged for the 2012 MRI. According to a declaration made by respondent's counsel, appellants' counsel stated during a mediation that they had arranged for the 2012 MRI following testimony given by a pediatric neuroradiologist. Appellants were also aware that respondent was in possession of the 2012 MRI; appellants were sent notices of a subpoena that was issued in 2013 to Emma's hospital seeking all imaging files, including MRIs, which would have included the 2012 MRI at issue here.
Although the 2012 MRI was not mentioned in either Dr. Blankenberg's declaration or his deposition, we disagree with appellants' characterization of Dr. Blankenberg's testimony about the 2012 MRI as constituting new opinions. At trial, Dr. Blankenberg gave his opinion that the 2008 MRI showed Emma had cystic encephalomalacia. This opinion was clearly set forth in his declaration and in his deposition. Dr. Blankenberg referenced the 2012 MRI as confirming his conclusion from the 2008 MRI, because the 2012 MRI depicted an absence of brain tissue on Emma's left side. Dr. Blankenberg noted the 2012 MRI was "helpful" but asserted that the damage shown on the 2012 MRI could have been predicted even without seeing the images. In short, Dr. Blankenberg did not offer a new opinion that was not disclosed in his deposition. His opinion remained the same: that the 2008 MRI showed cystic encephalomalacia. The 2012 MRI was merely used to bolster his previously disclosed opinion.
We find DePalma v. Rodriguez (2007) 151 Cal.App.4th 159 (DePalma) to be instructive. The plaintiff in DePalma sued after a vehicle accident and presented expert testimony on injuries she sustained to her left knee and left shoulder. (Id. at pp. 161-162.) At trial, the defendant's biomechanic expert testified that based on his experience and the information available to him, he believed there was no reasonable expectation of injury to the plaintiff's left knee or left shoulder. (Id. at pp. 162-163.) The plaintiff objected, arguing this opinion went beyond the scope of the expert's deposition. The trial court disagreed, finding that the expert's trial testimony "constituted merely an expanded description and interpretation of the conclusions stated in his deposition testimony." (Id. at p. 165.) At his deposition, the expert had testified that he would not expect the plaintiff to have suffered any injury from the accident. (Id. at p. 166.) Thus, his subsequent testimony at trial regarding the lack of specific injury to the defendant's knee or shoulder was not an unfair surprise to the plaintiff. (Ibid.)
Like the biomechanic expert's deposition in DePalma, Dr. Blankenberg's deposition properly disclosed the " 'general substance' " of his expected testimony at trial, which permitted the parties to adequately prepare. (Bonds v. Roy (1999) 20 Cal.4th 140, 148.) "Although a party is required to ' "disclose the substance of the facts and the opinions to which the expert will testify," ' this 'does not require disclosure of specific facts and opinions.' " (DePalma, supra, 151 Cal.App.4th at p. 165.) The general substance of Dr. Blankenberg's opinion, as we described, was that the 2008 MRI showed cystic encephalomalacia. Thus, it was not unreasonable for the trial court to conclude that his testimony at trial—that the 2012 MRI corroborated his findings on the 2008 MRI—did not exceed the general scope of his deposition testimony.
In sum, we find the trial court did not abuse its discretion by admitting Dr. Blankenberg's testimony about the 2012 MRI.
d. Appellants Fail to Demonstrate Prejudice
Even if we were to assume that admission of Dr. Blankenberg's testimony about the 2012 MRI was error, we would find it was harmless. (Evid. Code, § 353, subd. (b); see, e.g., Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692 ["In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."].)
As we previously noted, Dr. Blankenberg primarily used the 2012 MRI to corroborate his testimony on the 2008 MRI. Additionally, Dr. Blankenberg's opinion that Emma's injury was an old injury that must have been sustained sometime prior to labor was just one of several expert testimonies offered by respondent on the same subject. Dr. Fisher, Dr. Nageotte, Dr. Martin, and Dr. Phelan all testified that they believed Emma did not suffer an injury during labor and delivery.
Appellants argue the juror declaration submitted with their motion for a new trial or a judgment notwithstanding the verdict is indicative that admission of testimony about the 2012 MRI caused them prejudice. In the juror's declaration, the juror stated that the 2012 MRI was a central part of the jurors' deliberation, with some jurors believing that the lack of brain tissue shown on the 2012 MRI demonstrated that Emma's injury was an old injury, that the lack of brain tissue confirmed Emma's injury was cystic, and that appellants' objection to the 2012 MRI was proof appellants were hiding information and as a result respondent's testimony about the 2012 MRI was the "true, correct version."
The trial court, however, expressly found these portions of the juror's declaration to be inadmissible. Appellants do not challenge this ruling on appeal. Even if they did, we would find the trial court did not err in determining the declaration to be inadmissible. The declaration purported to show the significance the jurors attached to the evidence at trial, the jurors' state of mind, and the jurors' thought process behind the verdict. In short, the declaration constituted "improper intrusions into the subjective reasoning process of the jurors in violation of Evidence Code section 1150." (People v. Collins (2010) 49 Cal.4th 175, 250.)
Lastly, appellants claim that Dr. Pressman's unavailability to be recalled for rebuttal testimony supports their claim of prejudice. We find this argument meritless. We examine whether prejudice has been demonstrated by considering whether, after an examination of the record, it is reasonably probable appellants would have received a more favorable result had the challenged testimony been excluded. (Huffman v. Interstate Brands Corp., supra, 121 Cal.App.4th at p. 692.)
Thus, considering the admissible evidence presented at trial, even if admitting Dr. Blankenberg's testimony was error, the error was not prejudicial.
2. Exclusion of the Hypothetical Question to Dr. Pressman
a. Background
During the trial, appellants' attorney attempted to pose the following hypothetical to Dr. Pressman, their expert neuroradiologist: "Given the date of this study [the ultrasound], November 28, and the date of birth, I want to ask you if you have an opinion if what you see is consistent with the observations by the treating neonatologist that, on the 26th of November, the fontanel was soft and flat; on the 27th of November, it was slightly full; on the 28th, slightly full, not bulging; and, on the 29th, moderately full." Respondent's attorney objected to the question, which the court sustained. The court remarked that appellants needed to establish more foundation, because it was unclear whether Dr. Pressman had reviewed the records in question.
In response, appellants' attorney stated that he did not need to establish additional foundation for Dr. Pressman to answer the question, because he was asking Dr. Pressman to assume that the clinicians had made the aforementioned findings, and to confirm if his findings were consistent with the clinicians' assessment of Emma's fontanel. The court asked appellants' attorney to reframe the question. Appellants' attorney thus asked Dr. Pressman the following: "Is what you see on the ultrasound consistent with the reports by the neonatologist who treated the child, that on the November 26th, the date of birth, the fontanel was soft and flat; on the 27th, it was slightly full; on the 28th, it was slightly full, not bulging; and on the 29th, it was moderately full?"
Respondent's attorney objected again. The court sustained the objection, explaining: "This film relates to one day. I suppose you could ask him a question with regard to that one day, but I don't think there's sufficient foundation for all the dates that you mentioned in your question."
Appellants' attorney tried one last time to pose the hypothetical to Dr. Pressman. He asked Dr. Pressman if he was familiar with the progress of "hypoxic-ischemia injuries" in newborns, and if he was familiar with how these types of injuries correlate with the condition of an infant's fontanel. Dr. Pressman answered he was familiar with both subjects. Appellants' attorney then asked: "And, if that's so, I want you to assume that on the 26th of November, the fontanel was soft and flat; on November 27th, it was slightly full; on November 28th, it was slightly full, not bulging; and on the 29th, it was moderately full. [¶] And I want to ask you, first: Do you believe that what you see on the ultrasound is consistent with that assumed set of events; and, two, why do you believe that to be so?" Respondent's attorney again objected to the question, arguing it lacked foundation. The court sustained the objection, and appellants' attorney moved on to examine Dr. Pressman on other subjects.
b. Forfeiture
Before we address the merits of appellants' claim regarding the exclusion of Dr. Pressman's testimony, we first address respondent's claim that the contention has been forfeited. As a general rule, a verdict cannot be said aside due to the erroneous exclusion of evidence unless the substance, purpose and relevance of the excluded evidence was made known to the court "by the questions asked, an offer of proof, or by any other means." (Evid. Code, § 354, subd. (a).)
Respondent argues the record does not reflect the substance of Dr. Pressman's testimony if he had been permitted to answer appellants' hypothetical question. Appellants disagree, arguing that the colloquy between counsel and the court clearly sets forth what Dr. Pressman would have said in his testimony. We agree with appellants. Based on the wording of the question itself, it is reasonably clear the evidence sought to be introduced was Dr. Pressman's opinion that his observations from the 2008 ultrasound (that Emma had a hypoxic ischemic injury and not cystic encephalomacia) were in fact consistent with the physical condition of Emma's fontanel as observed by her physicians in the days following her delivery. Although appellants did not make a formal offer of proof, there is no requirement that a formal offer of proof be made under Evidence Code section 354. Thus, we find no forfeiture and proceed to address the merits of appellants' claim.
c. Overview and Standard of Review of Expert Witness Opinions
Expert witness testimony is limited to opinions that are: "(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier or fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801.)
" ' "The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement. In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited." ' " (People v. Williams (1989) 48 Cal.3d 1112, 1136.)
We review a trial court's determination on the admissibility of expert witness testimony for an abuse of discretion. (See Whitney v. Montegut (2014) 222 Cal.App.4th 906, 917-918.)
d. The Testimony Was Not Within Dr. Pressman's Expertise
During the trial, the court sustained respondent's objection that appellants' hypothetical question lacked foundation, because Dr. Pressman was not a clinician. The trial court also opined that the ultrasound film that Dr. Pressman had reviewed related only to one day, so it did not believe there was "sufficient foundation" for the dates mentioned in appellants' hypothetical.
"The essential questions which must be favorably answered to qualify a witness as an expert are two: Does the witness have the background to absorb and evaluate information on the subject? Does he have access to reliable sources of information about the subject? Two aspects of the witness's history are thus involved: the first, a subjective aspect, the capacity of the witness to understand and report: the second, an objective aspect, the witness's access and exposure to relevant data on the subject matter on which his opinion is sought." (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658.)
Dr. Pressman was qualified to testify as an expert neuroradiologist. Based on Dr. Pressman's qualifications, it was not an abuse of discretion for the court to conclude his testimony answering appellants' hypothetical would go beyond his stated expertise. During his examination, Dr. Pressman stated he was familiar with how the progression of hypoxic ischemic injuries correlate with the condition of the fontanel. However, there is nothing in the record to indicate that Dr. Pressman had the requisite training and experience to testify on such matters. When asked about his credentials and training at trial, Dr. Pressman said he was board certified in diagnostic radiology with an added qualification in neuroradiology. Dr. Pressman explained that radiology is the branch of medicine that diagnoses disease "by picture taking," utilizing techniques such as x-rays, ultrasounds, and MRIs. He defined neuroradiology as a subspecialty that concentrates on the brain and spine. An answer to appellants' hypothetical—which would have allowed Dr. Pressman to form an opinion that the hypoxic ischemic injury shown on an ultrasound was consistent with swelling of the fontanel—would have little to do with the image of the injuries as assessed from a radiology standpoint.
Thus, the trial court did not commit error when it precluded Dr. Pressman from answering appellants' hypothetical question.
e. Exclusion of Dr. Pressman's Answer Was Not Prejudicial
Finally, even if the court erred when it prohibited Dr. Pressman from answering appellants' hypothetical question, we find appellants have failed to establish prejudice. As we previously discussed, prejudice is established if, after a review of the record, it is reasonably probable appellants would have received a more favorable result absent the error. (Huffman v. Interstate Brands Corp., supra, 121 Cal.App.4th at p. 692.)
First, as respondent notes, appellants already proffered expert testimony from Dr. Glasscock tying the description of the fullness or swelling of Emma's fontanel with the images of her brain from the ultrasound.
Second, Dr. Pressman's answer to the hypothetical would not have presented any new evidence. It would have served only to corroborate his earlier testimony that he believed the ultrasound of Emma's brain showed evidence of hypoxic ischemic encephalopathy. As indicated in our factual summary of the trial, multiple experts disputed the cause of Emma's injury. Appellants have not established it was reasonably probable that this small addition to Dr. Pressman's testimony, which merely confirmed his earlier observations, would have permitted them to receive a more favorable result.
Thus, appellants fail to demonstrate exclusion of Dr. Pressman's testimony constituted prejudicial error.
DISPOSITION
The judgment is affirmed. Respondent is entitled to his costs on appeal.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.