Opinion
H050559
01-31-2024
BRUCE PRITZKER, Plaintiff and Appellant, v. PAULETTE BURGIN et al., Defendants and Respondents
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 17CV02029)
Greenwood, P. J.
Plaintiff Bruce Pritzker appeals a judgment after jury trial in his action for damages arising from a traffic accident. Defendants Paulette Burgin, the driver of the vehicle that caused the accident, and LJR Construction Co., Inc., the owner of the vehicle, (Respondents) stipulated to liability. The jury awarded damages to Pritzker which he claims are inadequate. Pritzker contends the trial court erred in its evidentiary rulings by precluding him from introducing evidence related to his medical condition and injuries and denying his request for judicial notice of the meaning of medical terms.
Such evidentiary errors by the trial court, Pritzker claims, impaired his ability to prove his injuries at trial, resulting in a low award. For the reasons stated below, we affirm.
I. Factual and Procedural Background
In August 2015, driving at an estimate of 30 miles per hour, Burgin rear- ended Pritzker's vehicle, stopped at a traffic light. Respondents conceded to liability and trial proceeded on the nature and extent of Pritzker's damages.
Pritzker claimed he suffered immediate pain to his neck, shoulder and back from the accident. He went to urgent care six days after the accident, and was advised to restrict activities, apply ice, and continue stretching. He returned to urgent care a few weeks later due to excruciating, radiating pain down his shoulder, arm and into his hand and fingers on the left side of his body. Pritzker was referred to a primary care physician and prescribed pain medication as needed, and thereafter referred to a neurologist to see if his cervical spine was implicated. Pritzker alleged the accident caused severe and repeated episodes of pain on the left sides of his shoulder, arm, hand and finger that impaired his functioning at times in cold weather and in water. Pritzker claimed the accident also caused his left index finger to drop such that his hand rested in a claw-like appearance.
Between 2016 and 2020, Pritzker visited orthopedic spine specialists, Dr. Robert H. Byers and Dr. Brian W. Su, from California Orthopedics &Spine. Respondents claimed his visits were sporadic, as he only met with the specialists in December 2016, January 2017, August 2018, and January 2020. Dr. Byers' office prescribed physical therapy, which helped to resolve discomfort in Pritzker's neck.
Pritzker subpoenaed the medical records from Dr. Byers' office, which were produced at trial with an accompanying custodian of records affidavit. Pritzker stated he was unable to afford Dr. Byers' appearance at trial. He therefore intended to use the medical records produced by Dr. Byers' office and testify about his own injuries, medical diagnosis and other information explained to him by the specialists and what he learned through his own studies about injuries to the spine. Prior to trial, Respondents filed motions in limine to exclude Pritzker's medical records and any expert testimony from Dr. Byers and testimony from Pritzker regarding his medical condition.
At a pre-trial status conference, the trial court informed Pritzker that he would need to have physicians establish the foundation for his medical records at trial. The trial court instructed Pritzker to produce Dr. Byers for a brief evidentiary hearing prior to the start of trial regarding the scope of Dr. Byers' testimony.
On the first day of trial, when Pritzker did not produce Dr. Byers, the trial court excluded the medical records from Dr. Byers' office, any testimony from Dr. Byers as an expert, and Pritzker's testimony as to his medical condition and injuries. The trial court denied Pritzker's requests to introduce excerpts from medical texts and to read into the record the diagnoses and recommendations of Dr. Byers.
Pritzker was able to testify as to the accident, his pain and suffering, the dates he visited Dr. Byers' office, and other "narrow amounts of similar information" such as "experiencing hyperextension in the crash." Pritzker also called a witness, Christine Power, a licensed massage therapist and acupuncturist, to testify about his dropping left hand index finger condition.
During trial, Pritzker filed a request for judicial notice of the definitions for the following words and phrases in medical use: "cervical," "crepitas," "disease," "foramen," "intervertebral disk," "ligament," "ligamentous," "lordosis," "myelomalacia," "osteoarthritis," "radiculitis," "radiculopathy," "stenosis," "strain," "symptomatology," syndrome," "theca," "acute," and "chronic." The trial court denied his request.
Pritzker, a retired attorney, did not identify a monetary amount for his personal injury claims but asked the jury to award a substantial amount. Following four days of trial, judgment was entered against Respondents and the jury awarded Pritzker the sum of $23,750, which consisted of $7,500 for loss or destruction of property, $2,000 for loss of use of personal property, $1,750 for prejudgment interest, and $12,500 for non-economic damages. The jury did not award any amount to Pritzker for past and future lost earnings, loss of earning capacity, or damage to personal property.
Pritzker timely appealed the judgment.
Pritzker requests we disregard portions of Respondents' brief not in conformity with California Rules of Court, rule 8.204, including references lacking citations to the record and an exhibit attached to Respondents' brief that was not part of the trial court record. We do not consider any issue or document that is not supported by the record on appeal.
Pritzker challenges the trial court's evidentiary rulings. He contends the trial court erred by (1) excluding his medical records from Dr. Byers' office; (2) precluding his testimony about his medical condition and injuries caused by the accident; and (3) denying his request for judicial notice of definitions of medical terms. Pritzker claims the errors amounted to a miscarriage of justice and were prejudicial to him because it negatively affected his ability to prove his personal injury claims. Respondents contend, because Pritzker failed to procure Dr. Byers as a witness at trial, the court properly excluded the proffered evidence. Based on our review of Pritzker's arguments and the applicable standards and authorities provided below, we conclude that Pritzker has not demonstrated error and we affirm the judgment.
Pritzker argues the de novo standard of review applies, citing Ghirardo v. Antonioli (1994) 8 Cal.4th 791, and Paterno v. State of California (Paterno) (1999) 74 Cal.App.4th 68. The issues on appeal in those cases, however, were not of the trial court's evidentiary rulings, as is the case here. (See Ghirardo, at pp. 799-800 [applicability of usury law]; Paterno, at p. 85 [erroneous application of the law].)
The trial court is, by statute, vested with discretionary power to admit or exclude evidence and, accordingly, we review evidentiary rulings for abuse of discretion. (Evid. Code, § 352; People v. Young (2019) 7 Cal.5th 905, 931.) An order denying a request for judicial notice is also reviewed for abuse of discretion. (Physicians Com. for Responsible Medicine v. L.A. Unified School Dist. (2019) 43 Cal.App.5th 175, 182.) Evidentiary rulings will not be disturbed except on a showing by the appellant that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 760.)
B. Pritzker's Medical Records
Prior to the start of trial, the trial court excluded Pritzker's medical records produced by Dr. Byers' office. Pritzker claims the records are admissible under the business records exception to the hearsay rule. Respondents argue the records are inadmissible because Pritzker failed to authenticate the records and establish the proper foundation for its admission.
Codified by Evidence Code section 1271, the business records exception permits hearsay to prove an act, condition, or event if the custodian of records or a qualified witness testifies that the record was made in the regular course of business, at or near the time of the act, condition or event, and the sources of information and method and time of preparation were such as to indicate its trustworthiness. (Ibid.) The custodian of records may, in lieu of live testimony, provide an affidavit in response to a subpoena duces tecum to establish foundation for admission of the business records, so long as the affidavit contains the required information identified in sections 1271 and 1561. (§§ 1271, 1560, subd. (b), 1561; Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, 1706.)
Unless otherwise specified, all undesignated statutory references are to the Evidence Code.
In response to Pritzker's subpoena duces tecum, Dr. Byers' office produced Pritzker's medical records together with a custodian of records affidavit signed by the "med/legal coordinator." Pritzker claims the affidavit satisfied the requirements under sections 1271 and 1561 for authentication and foundation. At the pre-trial hearing, however, the trial court informed Pritzker he needed a physician to authenticate his medical records. The record on appeal does not show the reason for the trial court's decision as it does not include a court reporter's transcript, or an adequate substitute, of the pre-trial and trial proceedings. Where the record is silent, we must make all intendments and presumptions in favor of the trial court's orders because they are presumed correct. (Denham v. Superior Ct. (1970) 2 Cal.3d 557, 564; Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [absence of record precludes determination that trial court abused its discretion].) The lack of an adequate record thus requires us to resolve the matter against Pritzker. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 (Maria P.).)
Even were we to consider the record adequate for review, Pritzker has not shown abuse by the trial court. First, the custodian of record's affidavit does not meet the foundational requirements of sections 1271 and 1561. There is no statement affirming that the copy of the records provided are "a true copy of all the records described in the subpoena duces tecum[,]" and the affidavit fails to identify the records and describe the mode of preparation of the records except in conclusory terms, which are not sufficient. (§ 1561, subd. (a); see Kramer v. Barnes (1963) 212 Cal.App.2d 440, 446 ["Affidavits which set forth only conclusions, opinions or ultimate facts are insufficient."].)
Second, the records from Dr. Byers' office consist almost entirely of the physicians' conclusions and Pritzker's own statements about his injuries and what caused them. The business records exception applies only to an "act, condition or event[,]" not conclusions and opinions. (See People v. Reyes (1974) 12 Cal.3d 486, 503 [physiatrist's diagnostic impression of the victim contained in medical report is not made admissible by the business records exception]; Hutton v. Brookside Hosp. (1963) 213 Cal.App.2d 350, 355 [nurse's written comment in medical record that patient "seems too ill to be moved" was an inadmissible conclusion].) Additionally, "a history given by a patient to his physician is admissible only as a basis for the expert opinion of the latter and never as substantive proof of the facts so stated to him by the patient." (People v. Williams (1960) 187 Cal.App.2d 355, 365.) Accordingly, it was well within the trial court's discretion to deny admission of Pritzker's medical records in this case.
Finally, Pritzker argues for the admissibility of the medical records by asserting "[t]here is strong public policy favoring the admissibility of these medical business records to prove the existence of the patient's physical condition." Pritzker did not provide any legal authority to support this argument and, as such, we will disregard it. "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary." (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
C. Pritzker's Lay Witness Testimony
Next, Pritzker claims it was prejudicial error for the trial court to preclude him from testifying, as a lay witness, about his own medical condition and injuries caused by the accident, such as "nerve impingement, degenerative changes," "severe disc desiccation and severe narrowing of the transverse foramen where the cervical spinal roots exit the C3-4, C4-5, C 5-6, C6-7 segments of [his] cervical spine[,]" and "probable injury to his spinal cord[.]"
Pritzker did not claim to be an expert. No expert witnesses were called by either party at trial. Thus, Respondents' reliance on People v. Sanchez (2016) 63 Cal.4th 665 and People v. Veamatahau (2020) 9 Cal. 5th 16 to support their arguments are inapplicable to this case. Those cases relate to case-specific hearsay relied upon by expert witnesses at trial, which is not at issue here.
A lay witness may only testify as to matters within his personal knowledge. (§ 702, subd. (a).) He may also provide opinion testimony, so long as it is rationally based on his perception and is helpful to a clear understanding of his testimony. (§ 800.) The subject matter of lay opinion, however, is limited to" 'one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness,' and requires no specialized background. [Citation.]" (People v. Chapple (2006) 138 Cal.App.4th 540, 547 [police officer could not offer his lay opinion on whether a body armor vest met certification standards because it involved concepts beyond a juror's common experience].)
While a lay witness may generally testify about his mental and physical condition, he may not testify as to matters based on scientific or other specialized knowledge within the scope of an expert witness. (Pacific Employers Ins. Co. v. Industrial Accident Com. (1941) 47 Cal.App.2d 494, 500-501 (Pacific).) Causation of injuries and probable future injuries are generally subject matters within the exclusive knowledge of experts and not lay persons. (Ibid.; Gen. Accident, Fire &Life Assurance Corp., Ltd. v. Industrial Accident Com. (1930) 106 Cal.App.39, 42 (Gen. Accident) ["probable future history of the disease of the patient, is one which belongs entirely within the scope of expert opinion."].) For example, in an action by a customer against her yoga instructor and yoga studio for personal injury, the court of appeal held "[i]t would be beyond the ability of a lay juror to determine, in the absence of expert testimony, whether plaintiff 's injuries were caused by [defendant's] actions, a chronic condition, or some other mechanism." (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 290.)
However, as Pritzker correctly notes, "[i]t does not require an expert to tell whether a person suffers." (Kline v. Santa Barbara Consolidated Ry. Co. (1970) 150 Cal.741, 750 (Kline).) In Kline, the Supreme Court concluded that witnesses who saw the plaintiff's pain and suffering could testify to such based on their personal observations. Descriptions of pain and suffering, however, is not the same as a physician's conclusion and interpretations of medical tests, diagnosis, etc.
Here, consistent with the holding in Kline, the trial court allowed Pritzker to testify about the accident, his pain and suffering, his dropping left hand condition, the dates of his visits to Dr. Byers' office, and other details within his personal knowledge. Pritzker, however, claims he should have also been permitted to testify about what his physicians informed him about his medical diagnosis, interpretations of his MRI scans and tests, causation of his injuries, and probable future injury. But as described in Pacific and Gen. Accident, these are subjects outside of his personal knowledge, and involve concepts beyond the jury's common experience. The testimony Pritzker sought to introduce exceeded the scope of an admissible lay witness opinion. Accordingly, the trial court did not abuse its discretion to limit Pritzker's testimony.
We distinguish the authorities cited by Pritzker. In Frederick v. Fed. Life Ins. Co. (1936) 13 Cal.App.2d 585, 589, plaintiff was asked whether he ever had gonorrhea. (Id. at p. 589.) The Second District Court of Appeal concluded, plaintiff, as a lay witness, had personal knowledge of whether he ever had the disease. (Id. at pp. 589-590.) Similarly, in Behr v. Redmond (2011) 193 Cal.App.4th 517, 528 (Behr), the Fourth District Court of Appeal noted, "[w]e have no doubt that a person who suffers from genital herpes is competent to testify as to when he or she had an outbreak of the disease." Here, Pritzker did not seek to introduce his assertion that he suffered from an easily identified and common disease. Rather, Pritzker sought to testify regarding the opinions of Dr. Byers, as well as the contents of the medical reports detailing Dr. Byers' diagnosis and conclusions. Unlike the parties in Frederick and Behr, Pritzker does not have the requisite personal knowledge of this specialized medical evidence, and, without the testimony of his treating physicians at trial, what his physicians told him about his medical injuries and diagnosis constitute inadmissible hearsay.
As to Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, we find it inapplicable to the facts of this case. In Minick, in support of a motion for relief from judgment, plaintiff's attorney filed a declaration stating that a combination of illness and heavy medication rendered him incapable of carrying out his duties as a lawyer. (Id. at p. 29.) Defendants objected to the testimony as improper lay opinion. (Id. at p. 32.) The Court of Appeal held the attorney could testify about his medical condition-cognitive disability-as a fact known to himself to establish attorney neglect for purposes of a motion for relief under Code of Civil Procedure section 473, as such motions do not require a declaration from a physician to establish illness. (Id. at p. 32.) The significant distinction in Minick is that the proffered testimony did not affect the jury's determination of a disputed fact going to the merits of the case. As such, we decline to extend the holding in Minick here.
Pritzker also claims the trial court erred in sustaining an objection during trial to his use of the word "permanent." However, as discussed above, without a court reporter's transcript or settled statement, we do not have an adequate record of what happened during trial. These limitations make it impossible for us to determine the nature of any alleged error. Because the judgment is presumed to be correct, Pritzker has not demonstrated any error by the trial court's preclusion of the word "permanent."
D. Pritzker's Request for Judicial Notice of Definitions
Finally, Pritzker claims the trial court was required to take judicial notice of the definitions he provided because section 451 states the court "shall" take judicial notice of "[t]he true signification of all English words . . .[,]" and "[f]acts . . . so universally known that they cannot reasonably be the subject of dispute." (Id., subds. (e) &(f).) Respondents argue that judicial notice is improper where Pritzker's injuries were disputed at trial and admission of such terms would have misled the jury on issues related to his injuries and caused confusion.
Pritzker's request for judicial notice lists definitions for 19 medical terms such as "radiculitis," "radiculopathy," and "symptomatology." The record on appeal does not show when or how all the various terms were used at trial, if at all, and what relevance each term has to the issues in this case. Again, without a court reporter's transcript or adequate substitute, we have no record of what occurred at trial. The absence of a record precludes a determination that the court abused its discretion. (Wagner v. Wagner, supra, 162 Cal.App.4th at p. 259; Maria P., supra, 43 Cal.3d at pp. 1295-1296.)
Even were we to consider the record adequate for review, it was well within the trial court's discretion to deny judicial notice of the highly technical and scientific definitions in this case. "While [section 451], provides in mandatory terms that certain matters designated therein must be judicially noticed, the provisions contained therein are subject to the qualification that the matter to be judicially noticed must be relevant [citations] [,]" as well as qualified by section 352. (Mozetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578; see also §§ 350 &450.) Thus, relevant material the court must judicially notice may nonetheless be excluded if "its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352, subd. (b).)
Here, the terms and definitions in Pritzker's request for judicial notice contain medical words and phrases that would be foreign to most persons without a medical degree. Without the testimony of any treating physician or medical expert at trial, it was reasonable for the trial court to conclude that the probative value of the definitions for these terms, if any, did not outweigh the likelihood in creating substantial danger of undue prejudice, confusion, or of misleading the jury. Accordingly, the trial court did not abuse its discretion to deny Pritzker's request for judicial notice.
III. Disposition
The judgment is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(1)-(2).)
WE CONCUR: Bamattre-Manoukian, J., Adams, J.[*]
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.