Opinion
2d Civil No. B231124
02-07-2012
MICHELLE RILEY, Plaintiff and Appellant, v. CENTURY 21, Defendant and Respondent.
Steven R. Andrade, Shannon E. Norquist for Plaintiff and Appellant. Law Offices of Belofsky & Hanker, LLP, David A. Belofsky, Oliver P. Lasley for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1318152)
(Santa Barbara County)
Plaintiff Michelle Riley appeals a judgment in favor of defendants trustee of the Mixsell Revocable Living Trust, Century 21 and Diane Long on her slip and fall personal injury action. In a special verdict, the jury found that defendant Century 21 was negligent, but that these defendants did not cause harm to Riley. We conclude, among other things, that the trial court did not commit error by denying Riley's request to call an expert in radiology to testify at trial. We affirm.
FACTS
On November 15, 2007, Riley fell while "taking out the trash" at the apartment complex where she resided. She claimed defendants, who owned and maintained that complex, allowed a dangerous condition to exist which caused her to fall and sustain serious injuries.
Riley filed a personal injury action against defendants alleging causes of action for "general negligence" and "premises liability." She claimed the "dangerous condition consisted of a portion of uneven concrete sidewalk on the defendants' premises."
Before trial, Riley designated three medical experts to testify on her behalf--Dr. Howard Gregersen, her treating physician, Dr. Michael Fiske, her chiropractor, and Dr. Alan Moelleken, her retained expert on spinal surgery. The defense designated Dr. Richard Kahmann, an orthopedist, as a retained medical expert.
Less than a week before trial, defendants claimed they were surprised by the receipt of new evidence from Riley's counsel. They filed a motion to exclude it, claiming Riley had not disclosed this evidence during discovery.
The trial court ruled the new evidence, which included CT scans and medical reports about Riley's up-coming spinal fusion surgery, could be introduced at trial. But because it had been untimely disclosed to defendants, they could designate a defense radiologist to review it and testify at trial. It denied Riley's request to designate her own radiologist. The defense designated Dr. Neil Chafetz as their radiology expert.
Riley filed a motion to exclude Chafetz from testifying at trial. She claimed that because the defense had designated Kahmann as their expert, they could not add Chafetz as a witness. Riley's counsel claimed Chafetz would duplicate Kahmann's testimony. The court denied this motion.
At trial, Riley testified that on November 15, 2007, she fell and hit her head after her foot "got caught" on the sidewalk. On direct examination, her counsel asked whether she first fell on her back or her head, she said, "I really don't remember . . . . I thought I fell backwards on my side and turned my head, and that's how I got cut. But I really don't know . . . ." Her counsel asked, "Before November 15, 2007, did you ever complain to a doctor about shooting pains before the fall?" Riley: "No, I don't think I did. I don't remember if I did or didn't." On cross-examination, she said she had lived at the complex for three or four years and she had known that there was a gap in that sidewalk. The defense counsel asked her, "Do you recall whether or not you stepped in it before your fall?" Riley: "I don't know exactly what all happened or took place."
Dr. Gregersen testified about his medical treatment of Riley. In 2005, she had fallen and experienced "right pleuritic chest pain." In 2006, she took medications for epilepsy. In September 2008, Riley complained about having radiating hip and leg pain. Gregersen opined that this problem was the result of a "pinched nerve or inflammation of a nerve." In a June 2009 visit, Riley said she was moving to Texas and would see a neurologist there. She was feeling better, but she had "low back pain."
Gregersen said Riley had experienced a series of falls before and after the November 15, 2007 fall on defendants' property due to seizures. On cross-examination, he said he could not "with a reasonable degree of medical certainty" testify "which of these, events, if any," caused Riley to experience the "radiating hip pain."
Moelleken opined that the November 15, 2007 fall "probably" caused Riley to have to undergo spinal fusion surgery. But it was possible that she could have experienced a sudden deterioration requiring her to need that surgery even had she not fallen on November 15, 2007.
Fiske said the November 15th fall was the event that caused a spinal lesion and aggravated nerve compression. This resulted in the need for her to have the spinal fusion surgery. On cross-examination, he said that Riley had listed complaints about mid-back pain, low back pain and hip pain eight months before that fall.
In the defense case, Chafetz testified that the November 15th incident was not the first time Riley experienced "radicular pain." She had "about a dozen complaints of low back pain prior to the accident." There was "no way to distinguish" between the many falls she had and the November 15th incident. A review of Riley's "vertebral body" showed evidence that her bone structure had developed "degenerative changes" that were not "related to a fall." There was a "pars defect," or bone change deformity, which was caused by a natural "process that takes many years."
Kahmann testified he never had the opportunity to review the new CT scans. He said Riley's November 15th fall caused only a "mild lumbar strain."
DISCUSSION
Riley notes that after the deadline for designating expert witnesses, the trial court allowed the defense to call a radiology expert to testify at trial. She claims it committed reversible error by doing so and by denying her request to call her own radiology expert. We disagree.
In the pretrial motion, the defense sought to exclude new medical records that Riley was seeking to introduce at trial. These included CT scans and reports from Dr. Kenneth Ressor who concluded that Riley would need surgery. Defendants claimed: 1) this new evidence was "produced to defendants less than a week before trial"; 2) the defense received it "weeks after the discovery completion" deadline; 3) the "medical providers who authored the records were never identified to defendants in discovery"; 4) Riley represented that her "last treatment" relating to the fall took place in June 2009, the new records were a surprise; and 5) introducing the new evidence at trial would prejudice the defense which had no time to review it and prepare for trial.
At the September 8, 2010 hearing, defense counsel told the trial court that the discovery cut-off date was August 9th, and that she did not receive Ressor's surgery recommendation report until September 2nd. She first learned about the CT scans "Thursday evening of last week." Riley's counsel gave a CT scan disk to its expert, but not to defense counsel. This denied defense counsel the opportunity conduct discovery. She said, "[W]e must have a chance to . . . have a radiologist look at these new CT scans."
Riley's counsel claimed that the new "radiological images . . . demonstrate the damage" to Riley's spine and prove why Riley needs surgery. He said the jury should know that Riley will be required to undergo a "two-level fusion" surgery, which entails "installing hardware on both sides of her spine." The exclusion of these medical records would deny Riley her "right" to prove "damages" and to be compensated "for the surgery that she is going to have in October." He claimed there were justifiable reasons for the late presentation of this evidence. He said Riley "did things as quickly as she could."
But the trial court was not persuaded. It viewed Riley's counsel's effort to introduce this evidence at this time as a discovery violation. It said, "I see this just as game playing. We have discovery cut-offs, expert designation cut-offs; they have not been complied with." It noted that in 2009, Moelleken opined that Riley would need surgery. The court was concerned that Riley's counsel could use this new evidence to support his conclusions, but the defense would not be able to refute it. It found the defense motion to be meritorious and said, "I'm really leaning to just exclude it."
The trial court then reconsidered. It granted a continuance of trial and ruled Riley could introduce the new medical evidence. Defendants requested permission to designate an expert in radiology to "review the new films" in Riley's medical records and to call that expert to testify. The court granted that request. Riley's counsel said, "[M]ay we designate our own radiologist?" The court said, "No. I'll decide whether I want to issue an order to show cause on sanctions. I don't want any further experts . . . designated by [Riley]." The court re-opened discovery for the limited purpose of allowing the parties to depose the defense radiologist.
Riley claims the trial court erred by finding that evidence about the need for surgery should have been disclosed to the defense at an earlier date. She claims she did not know she needed surgery until August 31, 2010, which was shortly before trial. But in her declaration, she said Moelleken "considered surgery as an option" in 2009. Riley contends the court erred by ruling that she unreasonably delayed in obtaining the CT scan evidence. Her counsel declared that Riley moved to Texas and was unable to obtain a CT scan while she was in California. In her declaration, Riley said she was unable to obtain a referral for "an orthopedic doctor in Texas" until August 2, 2010. She suggests the court was required to accept these facts.
But the short declarations that Riley submitted were largely conclusory and did not contain specific factual detail and documentation to explain the delay. At the pretrial hearing in response to a question by the court, Riley's counsel agreed that Moelleken wanted Riley to have CT scans in 2009. The trial judge did not find the declarations submitted by Riley to be credible. The trial court "is the sole judge" of credibility. (Church of the Merciful Saviour v. Volunteers of America, Inc. (1960) 184 Cal.App.2d 851, 856; see also Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647.) It had additional reasons to question Riley's credibility. It had previously sanctioned her for not appearing at a mandatory settlement conference and it found the reasons she gave for not attending were not credible. Moreover, it is undisputed that the new evidence was produced after the discovery completion deadline.
Riley contends that allowing the defense to call a radiologist was an abuse of discretion. But the trial court was responding to a defense objection to surprise evidence submitted beyond a discovery cut-off date and shortly before trial. Parties have a "right" to expect discovery will be completed within set time limits before trial. (Code Civ. Proc., § 2024.020.) This protects litigants from having to respond to "surprise" evidence. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.) Courts may impose sanctions for noncompliance with discovery rules that may include limiting the evidence a party may present. (Code Civ. Proc., §§ 2023.010; 2023.030; McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 96-97; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.)
Riley argues that the scheduling of surgery was out of her hands and consequently the trial court erred by finding the late submission of this evidence was a discovery violation. But even if she is correct, courts still have inherent authority to place conditions on the admissibility of recently disclosed evidence to protect the opposing party from surprise. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288.) Riley claims admitting this evidence with the condition that the defense could call a radiologist was error. She notes the court granted permission for the defense to call a radiologist well after the deadline to file expert witness lists had expired.
There are time limits for designating experts and supplemental experts. (Code Civ. Proc., § 2034.280.) But a trial court has discretion to allow a party to call an expert who was not listed on an expert designation list for the purpose of responding to surprise evidence. (Code Civ. Proc., §§ 2034.610; 2034.620; 2034.710; Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476; Gallo v. Peninsula Hospital (1985) 164 Cal.App.3d 899, 904 ["The trial court has discretion to grant defendant permission to call an expert witness not listed"].)
Here the trial court concluded that excluding Riley's new evidence would be detrimental to her case, but simply admitting it at this late date would be unfair to the defense. The court opted for a compromise. It allowed her to use the new medical records at trial, but it evened the playing field by allowing the defense to call a radiologist. Riley's counsel told the court that the new evidence should be admitted to allow Riley to show the causal connection between the fall and the need for the spinal fusion surgery. But as Century 21 notes, the court did not prevent her from presenting expert testimony on that issue. The court admitted her experts' testimony for the jury to consider. Riley claims the trial court created an unfair balance of experts against her. But three experts testified in the plaintiff's case, two in the defense case. Had the court granted her request to add a fourth expert in the plaintiff's case, she would have had the benefit of being able to both introduce her eleventh-hour evidence and add another expert.
Riley contends the trial court had no authority to preclude her from calling her own expert in radiology. But "[t]he court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party." (Evid. Code, § 723.) This is a matter within the trial court's sound discretion. (Redondo Beach School Dist. v. Flodine (1957) 153 Cal.App.2d 437, 449.) Here the court knew at least two of her experts would testify about the spinal fusion surgery. Riley suggests that allowing Chafetz to testify gave the defense an unfair advantage in introducing expert opinions on whether the new CT scans and recent surgery records proved that the fall made surgery necessary.
But, as Century 21 notes, in the plaintiff's case, Moelleken and Fiske opined that: 1) the fall caused the need for the surgery, and 2) the new evidence bolstered their opinions. At the pretrial hearing, Riley's counsel stated his "fear is that [the defense is] . . . going to have two witnesses testifying as to . . . what the myelogram CT scans show." But that did not occur at trial. Moelleken relied on the "CT myelogram" evidence in reaching his conclusions. On the defense side, Chafetz had a different opinion about the CT scan evidence. But Kahmann testified he never had an opportunity to review the new "CT myelogram" evidence. Moreover, for the benefit of the plaintiff, the trial court ruled it would not allow the defense to present cumulative expert testimony.
Basham v. Babcock
The trial court denied Riley's motion to exclude Chafetz as a defense radiology expert. Riley contends that by allowing the defense to designate and call him to testify, the court committed reversible error under Basham v. Babcock (1996) 44 Cal.App.4th 1717. We disagree.
In Basham, a case involving a surprise defense trial tactic, we stated the general rule that "a party who has designated an expert to testify on a particular subject may not replace that expert with one stated on a supplemental list." (Basham v. Babcock, supra, 44 Cal.App.4th at p. 1718.) We also said, "The trial court must exclude from evidence the expert opinion of any witness offered by any party who has unreasonably failed to list the witness as an expert." (Id. at p. 1723.)
In Basham, the defense in a personal injury action designated an orthopedist to testify as an expert witness. It later served a supplemental designation listing a radiologist. The plaintiff deposed the orthopedist who said the automobile accident caused a flare up of the plaintiff's degenerative disc disorder. During trial, the plaintiff called the orthopedist as a rebuttal witness, but he did not appear. The defense counsel told the court that he decided only to call the radiologist and he released the orthopedist who was then on vacation. This was a surprise to the plaintiff who had expected the orthopedist to testify. The defense had not given prior notice of its decision to switch witnesses. The plaintiff tried to locate and serve the orthopedist with a subpoena, but attempts at service were unsuccessful. The trial court ruled that the orthopedist's deposition testimony was not admissible. The plaintiff did not depose the radiologist. The trial court did not allow the plaintiff to mention any portion of the orthopedist's opinion to the jury.
After a defense verdict, the plaintiff in Basham appealed. We reversed stating, "[A]t a minimum, [the plaintiff] should have been allowed to read to the jury appropriate portions" of the orthopedist's deposition. (Basham v. Babcock, supra, 44 Cal.App.4th at p. 1724.) We were concerned with the defense tactic of substituting designated expert witnesses at trial in a manner that surprised the plaintiff. We said, "It follows that a party who has designated an expert to testify on a particular subject may not use a supplemental list to substitute experts." (Id. at p. 1723.) The defense "failure to call [the orthopedist] did not open the door for [the radiologist] to testify on subjects for which [the orthopedist] was retained as an expert witness." (Ibid.)
Century 21 claims Riley's reliance on Basham is misplaced because it did not involve either a plaintiff's attempt to introduce surprise evidence or a judicially crafted condition as a remedy for its late admission. It notes that, unlike Basham, here the defense "orthopedist, and radiologist, were deposed and testified at trial" and "the jury was not precluded from hearing contradictory evidence from the [defense] expert witnesses." Century 21 is correct. In Basham, the defense used a surprise litigation tactic against the plaintiff. Here, by contrast, the plaintiff surprised the defense and the trial court properly fashioned a remedy to allow the tardy admission of Riley's eleventh-hour evidence and a means for the defense to respond.
In Basham, prejudicial error was established because the record disclosed the specific excluded evidence and its impact on the judgment. Here, by contrast, there is only a surfeit of speculation. Riley suggests that had she called her own radiologist the result would differ. But she does not cite to facts showing who she would have called and the substance of the proposed testimony. The record does not contain a declaration from her proposed radiologist to support an offer of proof or to establish a factual basis for her argument on prejudice. The mere possibility that there might have been another favorable opinion if she retained another expert does not mandate reversal of the jury's verdict. (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.)
Century 21 notes that the jury may not have even relied on any of the expert opinions in this case. It cites to Riley's medical history which contains strong evidence supporting the defense position on causation. Riley had a significant history of falling because of seizures. Her propensity to fall was so great that her treating doctor recommended she wear a "helmet." The medical records reflect that Riley had a series of falling incidents which occurred both before and after the November 15, 2007 fall on defendants' property. Gregersen testified that she had fallen in 2005 resulting in chest pain. On August 15, 2006, Riley fell and hit her head on a television set. On September 1, 2006, she fell and hit her arm on a table. On September 20, 2006, she suffered a chest injury due to a fall. There were three other such incidents in June, July and August of 2008. On September 26, 2008, Riley complained that she felt "radiating hip pain through [her] lower extremity."
Gregersen was asked, "Can you, with a reasonable degree of medical certainty, tell us which of these events, if any, caused the symptoms recorded on 09-26-08, as pain which is radiating through the right hip and lower extremity?" He responded, "I could not, no." (Italics added.) Gregersen also testified that he saw Riley shortly after her November 15th fall on defendants' property. These visits occurred on November 19th and 26th. On both occasions the medical records reflect that Riley did not make any complaints about back pain. Riley also made no complaint about back pain in her August 2008 visit.
Fiske testified that eight months prior to the fall on defendants' property, Riley listed a series of symptoms, including dizziness, headaches, migraines, neck pain, shoulder pain, arm pain, mid-back pain, low back pain, chest pain, hip pain, and tailbone pain. She also stated she had "disc problems ten years ago." Seven months before the November 15th fall, Riley had a high pain level of seven in the lumbar back area. On the day of the November 15th fall, the emergency medical records reflect that Riley made no complaint that she had any "lower extremity problems."
This testimony from her experts undermined her claims. Her third expert, Moelleken, opined that the fall "probably" caused the need for her surgery. But he also conceded that "without this fall . . . it's possible that things suddenly would have deteriorated to the point where she needed the fusion." The jury could reasonably infer that his assessments were based on an incomplete medical history. He conceded that Riley was not "a great historian" of her medical history. She did not disclose the falls she had in June, July and August 2008; she did, however, complain about pain from an additional fall in December 2008. Moelleken said, "[A]ny of these falls could have caused back problems."
Moreover, the jury could draw strong inferences favorable to the defense from Riley's conflicting trial testimony. Riley could not respond to critical questions about how she fell, how she landed, and whether she stepped in the gap before the fall. Her statements about her foot being caught were contradicted by her admissions that she did not remember the events. She claimed she did not fall as a result of a seizure, but this was undermined by her hazy memory of the incident and her repeated inability to respond to critical questions. At a critical point during her testimony, she was asked, "[W]ere you looking on the ground as you approached the area where you fell . . . ?" She responded, "I don't remember." Moreover, her credibility was severely impeached by the defense. On direct she testified she had not previously sued anyone because of a fall. On cross-examination, she admitted she had sued Burger King. The defense successfully utilized prior inconsistent statements she made during her deposition to undermine her trial testimony. Statements she made to Fiske about her medical condition before the fall contradicted the position she advanced at trial. She has not shown prejudicial error.
The judgment is affirmed. Costs on appeal are awarded in favor of
respondent.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
COFFEE, J.
PERREN, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
Steven R. Andrade, Shannon E. Norquist for Plaintiff and Appellant.
Law Offices of Belofsky & Hanker, LLP, David A. Belofsky, Oliver P. Lasley for Defendant and Respondent.