Opinion
D068199
01-12-2017
LARRY D. MILNER, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
Law Office of Paul A. Dulin and Paul A. Dulin for Plaintiff and Appellant. Cole Pedroza, Curtis A. Cole, Cassidy C. Davenport; Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson, Robert W. Frank and Kendra A. Anderson for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2008-00078431-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed. Law Office of Paul A. Dulin and Paul A. Dulin for Plaintiff and Appellant. Cole Pedroza, Curtis A. Cole, Cassidy C. Davenport; Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson, Robert W. Frank and Kendra A. Anderson for Defendant and Respondent.
Larry D. Milner appeals a judgment following a jury trial in which the jury found in favor of the Regents of the University of California (Regents) in a wrongful death suit, involving Milner's son. Milner contends the trial court prejudicially erred by not properly providing clarifying jury instructions regarding causation. In addition, he claims he should be granted a new trial because of juror misconduct as well as misconduct during closing argument by the Regent's trial counsel. Finally, Milner asserts cumulative error warrants reversal.
On the record before us, it is clear that none of the issues raised here were preserved by objection below. As such, we determine all of Milner's claims forfeited. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Milner's son, Larry, had lupus, a chronic disease that causes the body's immune system to attack its own tissue. Larry's disease caused kidney failure, and Larry received a kidney transplant in August 2006. Larry experienced complications following his transplant, which required hospitalization in September, October, November, and December 2006.
On December 6, 2006, Larry was admitted to UC San Diego Medical Center for congestive heart failure and renal failure. He was intubated and treated in the intensive care unit. As part of his treatment, Larry was taken off of his medications that were suppressing his immune system to allow his body to accept the new kidney. Larry was discharged from UC San Diego Medical Center on December 23, 2006.
A few weeks later, on January 13, 2007, Larry went to the emergency room because of a fever, cough, and diarrhea. The physicians who examined Larry suspected that he had a cytomegalovirus infection; thus, they treated him as having such while awaiting test results. Among the tests performed, the physicians caused certain fungal tests to be conducted on Larry, including a bronchoscopy. All came back negative for fungus. However, a mass, referred to as "erythema," was found in his upper left lung. Apparently, erythema is a very common and nonspecific finding that does not necessarily indicate the existence of an infection. Larry was treated with antiviral medications and discharged to Continental Health Care, a rehabilitation facility on January 26, 2007.
On February 2, 2007, a chest x-ray was performed at Continental Health Care, which revealed a three-centimeter opacity on the upper left lobe of Larry's lung. The opacity was indicative of a possible fungal infection. The pulmonologist, believing the opacity to be consistent with cancer, recommended a CT scan, which was conducted on February 8.
At this time, Dr. Teja Singh met with Larry on February 9, 2007, and recommended that Larry be transferred to a hospital. However, after a 30-minute discussion, Larry opted to go home against Singh's advice.
The CT scan performed on February 8 confirmed the presence of a fungal infection and revealed a "cavitating mass" meaning the center of the cavity was liquefying and creating a hole that extended into the central part of the chest (the mediastinum). Although a possible treatment for a fungal infection in the lungs is surgery to remove the infectious mass, the fact that Larry's infection had spread to the mediastinum rendered his mass inoperable.
On February 20, 2007, Larry had a follow up visit in the infectious disease clinic at UC San Diego Medical Center. The physician who saw Larry realized he was very sick and needed to be hospitalized. He was admitted to UC San Diego Medical Center that evening, where a physician recommended additional antibiotics and a pulmonary evaluation. Unfortunately, Larry passed away on February 21, 2007. An autopsy confirmed that Larry died of mucormycosis, a severe fungal infection.
Milner brought suit against the Regents for negligence and wrongful death. The Regents obtained a judgment on a motion for nonsuit. Milner appealed, and this court reversed the judgment. (Milner v. The Regents of the University of California (April 11, 2013, D060037) [nonpub. opn.].)
The matter ultimately proceeded to trial on February 9, 2015. The jury found unanimously that the Regents were negligent, but such negligence was not a substantial factor in the cause of Larry's death (with only two of the 12 jurors finding the Regents' negligence was a substantial factor). The court subsequently entered judgment in favor of the Regents.
Milner timely appealed.
DISCUSSION
Milner raises three issues here. First, he claims the jury was confused about causation and the trial court did not properly respond to the jury's questions. Second, Milner asserts the trial court improperly ignored a potential issue of juror bias. Third, he maintains the Regents' counsel committed prejudicial misconduct by comparing Larry's fungal infection to cancer. As we discuss below, we determine that Milner forfeited each of the issues by not raising them with the trial court below.
I
JURY'S QUESTIONS ABOUT CAUSATION
Milner argues the jury was confused about the issue of causation. To this end, he argues that the trial court did not properly: (1) respond to the jury's questions and (2) instruct the jury on causation.
Among other questions not pertinent here, at the end of the trial, the jury was tasked with answering two questions regarding the Regents' potential liability. Question No. 1 consisted of the following, "Was the defendant [Regents] negligent in the diagnosis and treatment of Larry Milner, Jr.?" Question No. 2 asked, "Was [the Regents'] negligence a substantial factor in causing Larry Milner, Jr.'s death?"
In addition to other evidence to establish the Regents' liability, Milner offered the testimony of expert witness Dr. Stephen Fischer. Fischer opined that early diagnosis and early treatment is the key to surviving a fungal infection like the one that afflicted Larry. He then offered testimony that the Regents' physicians missed diagnosing and treating Larry for his fungal infection numerous times. Fischer also testified that Larry's survival rate would have been between 60 and 80 percent had the physicians diagnosed and treated him for the fungal infection by February 9, 2007.
However, Fischer admitted that some medical literature stated that the survival rate of "sicker patients" like Larry with a severe fungal infection is closer to 50 percent. Moreover, the Regents' attorney offered Fischer's deposition testimony that he did not believe Larry would have survived surgery to remove the fungal mass on February 20, 2007.
In addition to the testimony of other doctors who treated Larry, the Regents offered the expert opinion of Dr. Gonzalo Ballon-Landa. Ballon-Landa testified that there was no indication that Larry had a fungal infection in January 2007, and that a CT scan taken on February 8, 2007 showed Larry had "mediastinal adenopathy" indicating that he had cancer, tuberculosis, a severe lung infection, or fungus. Ballon-Landa further testified that as of February 8, 2007, based on the spread of the fungal infection, "it would have been impossible to save [Larry]."
Attorneys for both parties emphasized the testimony of their respective experts during closing argument.
The jury unanimously found that the Regents were negligent in the diagnosis and treatment of Larry, but, by a vote of 10 to two, that negligence was not a substantial factor in causing Larry's death. As such, in regard to causation, the jury did not believe it was a close case.
Milner, however, maintains that the jury's verdict should be questioned because the trial court did not properly respond to certain questions from the jury regarding causation. To this end, he points out a series of questions asked by the jury about causation. The first question stated, "Regarding question #2, Question #2 does not specify the date on which the death occurred, but the causation instruction indicates that without negligence, Larry Jr. would not have died on February 21, 2007, (versus February 22 or February 23rd or . . .)." The court noted that the jury did not appear to be asking a question. After some discussion with counsel, the court proposed the response, "The Court is unable to respond as no question has been posed." Milner's trial counsel indicated that such a response was "acceptable."
The jury asked additional questions that were answered by the trial court. These questions and answers are not relevant to the issues raised in this appeal.
The next jury question the trial court addressed asked, "Clarification. Does the date of February 21st in the causation instruction apply to Question #2?" The court proposed to answer this question in the affirmative. Milner's counsel commented, "I agree. I think it's consistent with what the instructions say."
The final question inquired, "If a juror believed that but for the negligence, life would have been prolonged by a day, but he would have still died, can he/she answer no or must he/she answer yes to Question #2?" The trial court proposed to respond to the jurors by telling them that it cannot instruct a juror how to vote. Milner's trial attorney indicated his agreement by stating "concur."
Here, Milner insists, in response to these questions from the jury, "the court should have provided specific guidance on the issue of causation." However, Milner did not preserve this issue for appeal. It is clear at trial, Milner's counsel agreed with the trial court's responses to these three questions. Such an agreement amounts to a forfeiture of the issue because Milner's counsel acquiesced in and contributed to any error he claims the court committed in responding to the jury's questions. (See Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743.)
Further, to the extent that Milner argues that the trial court improperly instructed the jury regarding causation, he has forfeited that issue as well. "It is appellant's burden to demonstrate the existence of reversible error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) Here, Milner does not cite to the actual jury instructions provided to the jury. It is the appellant's duty to support arguments in his or her briefs by references to the record on appeal, including citations to specific pages in the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Nor does he explain what additional instructions were necessary. "Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Accordingly, we determine that Milner has waived any challenge to the jury instructions provided in this case.
II
JUROR MISCONDUCT
Milner next contends he presented evidence of juror misconduct, and the trial court erred by failing to investigate it. We disagree.
A trial court is authorized to grant a new trial on grounds of "[i]rregularity in the proceedings of the . . . jury . . . by which either party is prevented from having a fair trial" as well as "[m]isconduct of the jury." (Code Civ. Proc., § 657, subds. 1, 2; see Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633; Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227.)
When evaluating a new trial motion based on juror misconduct, the trial court undertakes a three-step process. (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345.) It must first " 'determine whether the affidavits supporting the motion are admissible. [Citation.]' [Citation.] This, like any issue of admissibility, we review for abuse of discretion. [Citation.] [¶] Second, 'If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.]' [Citation.] 'The moving party bears the burden of establishing juror misconduct.' " (Ibid.) " ' "[W]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]" ' [Citations.] [¶] ' "Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial." [Citation.]' [Citation.] On appeal, this court reviews the entire record, including the evidence, and makes an independent determination as to whether the misconduct was prejudicial." (Ibid.)
We will not reverse a trial court's decision to deny a new trial alleging juror misconduct unless, on a review of the entire record, the court has abused its discretion. (Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1213.)
Here, Milner did not move for a new trial based on juror misconduct. Consequentially, he has forfeited this challenge and cannot now claim the court erred in failing to investigate the alleged juror misconduct.
Milner acknowledges that he did not move for a new trial, but insists we should overlook this failure because he was not represented by counsel after trial ended. He further notes that, as part of his motion to tax costs, he asked the court to investigate a claim allegedly made by a juror that she knew the Regents' counsel and was a juror in one of his previous trials. To this end, Milner submitted a declaration that stated among other things:
"I was present when a juror approached [the Regents' trial attorney] and told him that she knew him and had served on a previous trial with him. She told him the name and [sic] of the case and wanted him to confirm that he was in fact the attorney handling the case. He became extremely nervous and then told the juror that he did not handle the case. The juror then looked at him confidently and said 'well ok, thought it was you' or words to that affect."
In support of its opposition to Milner's motion to tax costs, the Regents submitted a declaration from its trial attorney addressing Milner's allegations of potential juror misconduct. In that declaration, the attorney stated that he did not engage in any ex parte communications with any jurors during trial. He also admitted to briefly talking with a few jurors after the verdict was returned, but he did not recall any juror mentioning that he or she thought he or she had served on another jury where he was counsel.
The trial court ultimately granted in part and denied in part Milner's motion to strike costs. The order does not specifically address Milner's claim of juror misconduct. However, based on the alleged juror misconduct, Milner had asked the court to deny the Regents' request for jury fees. Because the court awarded the Regents' requested costs for jury fees in their entirety, we conclude that the trial court made an implied finding that Milner's declaration failed to establish juror misconduct. (See Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550.) In doing so, we conclude that the trial court found the declaration of the Regents' attorney more credible than that of Milner. In other words, the trial court rejected Milner's declaration regarding the alleged juror misconduct. Milner has not provided any argument or authority that would allow us to ignore this finding.
Moreover, even considering Milner's declaration, the record before us does not allow us to determine whether any juror misconduct occurred. Milner's argument hinges on his claim that during voir dire the subject juror was asked if she knew any of the trial attorneys and answered that question in the negative. However, there is no transcript before us to review to determine whether such a question was even asked, let alone how the juror answered it. As such, Milner, as the appellant, has not satisfied his burden to provide an adequate record to affirmatively show reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Therefore, even if we treat Milner's motion to tax costs as a timely filed motion for new trial, on the record before us, we conclude the trial court did not abuse its discretion in impliedly finding no juror misconduct.
We also observe that Milner's declaration does not establish that the subject juror was biased or otherwise unable to serve as an impartial juror at the underlying trial even if she had previously served as a juror in an earlier case tried by the Regents' counsel. Put differently, Milner's declaration, even if believed, does not raise the specter of juror misconduct.
III
ATTORNEY MISCONDUCT
Milner's next argument is that the Regents' trial counsel committed prejudicial misconduct when he compared Larry's fungal infection to cancer. During closing, counsel argued:
"No matter what anybody did for this patient, the real world that we have to live with, we may not like it, but it's out there. Just like people that get cancer and it's discovered too late before they can do anything about it. It's a terrible situation, but that's where this was at this point in time."
Nevertheless, Milner's trial counsel did not object, much less request an admonition, during closing argument, forfeiting his claim. "Misconduct of counsel in argument may not be raised on appeal absent a timely objection and request for admonition during trial unless the misconduct was too serious to be cured." (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 130; italics omitted.) Milner has not argued the alleged misconduct was too serious to be cured. As such, we conclude Milner forfeited any claim that the Regents' trial counsel committed misconduct during closing argument.
Moreover, even if we were to consider the Regents' counsel's cancer comparison on the merits, Milner has not shown that such comments were inappropriately inflammatory on the record before us. There was testimony regarding the concern Larry had cancer, including mentioning a consultation with an oncologist. In fact, Milner admits that his own trial counsel noted that one of Larry's physicians thought Larry's lesion could be cancer. And it appears the Regents' counsel offered the cancer comparison during closing argument to emphasize the lack of causation in this case: Larry's condition was incurable when it was discovered. There is nothing incendiary or improper about the Regents' attorney's closing argument.
IV
CUMULATIVE ERROR
Milner's final argument is that even if no single error standing alone were sufficient for a reversal, the cumulative effect of the errors would require reversal. The cumulative error doctrine applies when the "the cumulative effect of the errors . . . makes[s] it 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error[s].' " (Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 141.)
However, we have found no errors. When no individual error occurs, there cannot be cumulative error. Therefore, this claim fails as well.
DISPOSITION
The judgment is affirmed. The Regents are awarded their costs on appeal.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
NARES, J. /s/_________
AARON, J.