APPEAL from a judgment of the Superior Court of Los Angeles County, Cesar C. Sarmiento, Judge. Affirmed. (Los Angeles County Super. Ct. No. SC 065146).
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In a previous opinion (Muller v. Daniel Freeman Hospitals, Inc. (Mar. 3, 2005, B169141) [nonpub. opn.]), we reversed a jury verdict in favor of University Medical Center in Fresno, which is now known as the Fresno Community Hospital and Medical Center (FCH), Dr. James Davis and Dr. Sanagaram Shantharam, who were defendants in that case. The case was tried again to a jury and again resulted in a jury verdict for FCH and Dr. Shantharam, Dr. Davis having been dismissed prior to the second trial. The trial court granted the motion for new trial made by plaintiffs Manfred Muller and Rose Shoshana. The trial court concluded that it had erred in not allowing plaintiffs to call Dr. James London as a rebuttal witness. FCH and Dr. Shantharam appeal from this order.
After the trial court granted the motion for a new trial, the plaintiffs filed a motion for sanctions based on alleged discovery abuses on the part of the defendants that were connected with plaintiffs' failed attempt to call Dr. London as a rebuttal witness. The trial court denied the motion and plaintiffs appeal from that order.
We ordered the two appeals to be consolidated for purposes of record, oral argument and decision.
We affirm the orders granting the new trial and denying the motion for sanctions.
Mr. Muller, a German-born sculptor living in Santa Monica, was severely injured on October 28, 1999, when the car he was driving to San Francisco went off Interstate Route 5 and rolled over twice. He was first taken to FCH, where he was under the care of Drs. Davis and Shantharam. After 13 days, Mr. Muller was transferred to Daniel Freeman Hospital in Los Angeles for rehabilitation. At Daniel Freeman Hospital, Mr. Muller came under the care of the Neurology and Rehabilitation Medical Group (NRMG), Dr. Howard Chew and Dr. Jeffrey Bogosian. After a few days, Mr. Muller was transferred to the UCLA Medical Center, where his left arm between the elbow and wrist was amputated. As we relate below, the fact that the amputation was below the elbow became pivotally important to the second trial.
Mr. Muller and his wife, Rose Shoshana, filed an action wherein they sued FCH, Daniel Freeman Hospital, NRMG, and Drs. Davis, Shantharam, Bogosian and Chew. The core of the complaint was that the defendants' alleged medical negligence resulted in the amputation of Mr. Muller's arm. Rose Shoshana sued for loss of consortium.
The case was tried to a jury. Evidence was presented from March 21, 2003, to April 14, 2003. The trial court granted directed verdicts to NRMG and Dr. Chew. The jury returned its special verdict on April 16, 2003, and found that FCH and Drs. Davis, Shantharam and Bogosian had not been negligent in their diagnosis, care and treatment of Mr. Muller. The case against Daniel Freeman Hospital was predicated on the theory that Dr. Bogosian was Daniel Freeman Hospital's agent; the verdict for Dr. Bogosian exonerated the hospital.
Our previous opinion affirmed the judgment as to Daniel Freeman Hospital and Dr. Bogosian but reversed as to the remaining defendants, i.e., FCH and Drs. Davis and Shantharam. In substantial part, our previous opinion was based on our conclusion that the trial court erred in precluding the plaintiffs from calling more than one expert per issue. We found that, under the facts of the case, plaintiffs should have been allowed to call experts retained by defendants Daniel Freeman Hospital, NRMG, and Drs. Chew and Bogosian who would have testified, in agreement with plaintiffs' theory of the case, that Mr. Muller had sustained irreversible injury while hospitalized at FCH. According to plaintiffs' theory of their case, the injury was caused by a "compartment syndrome," a condition that we explained in our previous opinion.*fn2
Plaintiffs' claim against FCH and Dr. Shantharam was based on the theory that Mr. Muller acquired the compartment syndrome while hospitalized at FCH and while he was under Dr. Shantharam's care at that facility. Specifically, when he arrived at FCH from the accident scene, all four bones in Mr. Muller's left hand were broken. Among other treatment, splint dressing was applied to the left hand. According to Dr. Moulton Johnson, plaintiffs' expert, danger signals indicating compartment syndrome began appearing on October 31, 1999 (Mr. Muller was admitted on October 28) and intensified through November 1, 1999.*fn3
Dr. London, who played a pivotal role in the second trial, was also the subject of our previous opinion. The aspect of Dr. London's role in our previous opinion that is germane to this appeal is that it is clear that Dr. London was an expert who had been designated as such by Dr. Chew.*fn4
All experts from both sides agreed that the failure to timely diagnose a compartment syndrome in a hospital setting with a conscious patient is below the standard of care. It was also generally agreed that a tight cast can cause or aggravate an existing compartment syndrome. The question therefore was whether Mr. Muller sustained such an undiagnosed injury while at FCH. According to the plaintiffs' experts, the answer was yes. The defense experts, on the other hand, opined that the injury to Mr. Muller's left hand and arm occurred during the crash when he sustained a crush injury.
Dr. London, who had been Dr. Chew's expert in the first trial, appeared as one of Mr. Muller's experts in the second trial.*fn6 Dr. London, a board-certified orthopedic surgeon, testified that Mr. Muller sustained a compartment syndrome at FCH and that if this condition is not treated within six to 12 hours, it results in the death of the muscles in the affected compartment. According to Dr. London, Dr. Shantharam's performance was below the standard of care because he failed to diagnose and treat Mr. Muller's compartment syndrome. Dr. London did not think that Mr. Muller had sustained a crush injury.
Drs. Stuart Kushner and Clark Davis, who had been experts for Daniel Freeman Hospital and NRMG in the first trial, both testified in the second trial that Mr. Muller sustained a compartment syndrome while at FCH. They were joined in this opinion by Drs. Luther Cobb, a board-certified general surgeon, Dr. Clark Davis, an orthopedic surgeon specializing in hand surgery, and Dr. Bogosian.*fn7 Not all of these experts found that Dr. Shantharam fell below the standard of care; as an example, Dr. Clark Davis had no opinion on this subject.
Four physicians at UCLA Medical Center, including Dr. Roy Meals, the treating orthopedist at UCLA Medical Center, were of the opinion that Mr. Muller sustained a compartment syndrome.
The first witness called by the plaintiffs testified on August 18, 2006. Thereafter, plaintiffs' witnesses testified on three successive trial days, i.e., on August 24, August 25 and August 28, 2006. On the fifth trial day, August 29, the defense called its first witness out of order. On the next day, August 30, the plaintiffs called one witness and the defense called two witnesses, including Dr. Michael Botte, whose testimony we summarize below.
The testimony that is central to both appeals took place on the next to the last day of testimony, i.e., on September 1, 2006. After that day, only Mr. Muller's spouse testified on September 5, 2006. All parties rested after she concluded her short testimony on September 5, 2006.
According to Dr. Botte's testimony given on August 30, Mr. Muller never sustained a compartment syndrome but rather a crush injury due to severe trauma to the left arm and wrist. Dr. Botte also thought that Mr. Muller had developed a secondary infection at Daniel Freeman Hospital. Dr. Botte concluded that both Dr. Shantharam and Dr. James Davis (Dr. Davis),*fn8 the chief of surgical critical care at FCH, complied with the standard of care and that they could have done nothing to alter the sad course of events for Mr. Muller.
The testimony on September 1, 2006, began with the defense calling Dr. Davis.
Dr. Davis testified on direct examination that Mr. Muller never had a compartment syndrome but that he had a dead hand and arm from the crush injury. On cross-examination, he was asked to explain how it was that Mr. Muller was allowed to leave FCH in Fresno without any notation in his medical record that he had a dead hand and arm.
Dr. Davis's attempts to answer were not satisfactory*fn9 and he was asked yet again how it was that Mr. Muller ended up with a dead hand and arm. This question he answered by stating that "[i]t's the natural physiology of the injury."
Counsel didn't really allow him to explain what he meant by this. So, on redirect, counsel for FCH asked Dr. Davis to "expand on why you think the natural physiology of the injury Mr. Muller sustained in the car accident evolved the way it did." After a lengthy preface, Dr. Davis came to the point: "[O]ne of the features of compartment syndrome is it kills what's in the compartment from the origin of the muscle all the way down to where the muscle inserts on -- on the other bony structure.... [T]he muscle in that whole compartment is in the same sheath so it's exposed to all the same pressure. [¶] So, when you get a compartment syndrome, the muscle in the whole compartment dies. So you don't save the leg below the knee,*fn10 ] you have to take it off at the knee or do an above knee amputation, and the kid's don't [sic] pitch high school ball. If you get it in the upper extremity, then you lose the arm at the elbow or even above the elbow. You don't have viable muscle below the elbow to close over the bony stump. That's what I meant by the natural history of the disease. And it can take several weeks to slowly progress."
Neither counsel nor Dr. Davis was finished with this topic. After Dr. Davis noted that Mr. Muller had a below the elbow amputation, which meant that there was viable muscle below the elbow joint, counsel asked: "Explain that. Why does the fact that he has a below elbow amputation rule out a compartment syndrome?" Dr. Davis answered at some length that in a compartment syndrome, all the muscle in the compartment dies but that if Mr. Muller "had living muscle to close over the bone, that wasn't dead from a compartment syndrome." Counsel asked: "Mr. Muller had quite a bit of muscle below the elbow joint that survived, didn't he? [¶] A [Dr. Davis:] I don't know. I haven't seen his operative note. I've noticed that he does, in fact, have an elbow joint. He does seem to have some below the elbow. So I would say he had enough muscle to close over the bone. [¶] Q And have you ruled out a compartment syndrome in his case? [¶] A Yes, sir, I believe so. [¶] Q And how strongly do you believe that? [¶] A That's what I believe."
Still on Friday, September 1, 2006, the next to testify was FCH's expert, Dr. Michael Kulick. Dr. Kulick testified that Mr. Muller did not have a compartment syndrome but that he had a crush injury. He reiterated the point that in a compartment syndrome, all the muscle in the compartment dies. Dr. Kulick noted that the operative report from UCLA Medical Center, where the amputation was done, stated that there was muscle on the forearm to cover up the stump. This was consistent with a crush injury and not consistent with a compartment syndrome.
The last to testify on September 1 was Dr. Shantharam. He had been previously called by the plaintiffs under Evidence Code section 776 but the subject that we have covered above did not come up in his prior testimony. At the end of his direct examination by his counsel, the following transpired: "Q [Dr. Shantharam's counsel:] Now, we've heard testimony earlier today that, if there had been a compartment syndrome, you would expect the entire muscle throughout the compartment to have died? [¶] A [Dr. Shantharam:] Correct. [¶] Q And you understand now that the entire muscle in Mr. Muller's compartment did not die? [¶] A It did not die. And one would be going through an amputation above the elbow if it is a compartment syndrome. [¶] MR. WEISS [Dr. Shantharam's counsel]: That's all I have, Your Honor. Thank you."
Plaintiffs' counsel did not cross-examine these three witnesses on the topic of the below-the-elbow amputation nor did counsel object to any of this testimony. After testimony was concluded on September 1, plaintiffs' counsel stated that plaintiffs' counsel had been in touch over the lunch hour with Dr. London "who's going to be here first thing in the morning to rebut some of the new evidence that we heard today." Dr. Shantharam's lawyer immediately objected "to the extent he's [Dr. London] going to be expressing opinions, because that's improper rebuttal." When the trial court asked for an offer of proof, plaintiff's counsel stated: "Your Honor, today for the first time, despite all of the experts who have testified in three weeks, today was the first day that the defendants put on experts who said that, whether or not the amputation was below elbow or above, was somehow indicative of whether this was a compartment syndrome. This was new. They didn't ask Dr. [Botte]. They didn't ask any of the other experts about this. We intend to call Dr. [London] back to simply say that, whether or not it's a below elbow or an above elbow amputation, is not indicative of whether or not this was a compartment syndrome. Plain and simple." The court requested authorities on the subject by next Tuesday morning, when the trial would reconvene.
On Tuesday, September 5, Dr. Shantharam's counsel filed a written memorandum, which stated that defense expert Dr. Kulick had testified that in a compartment syndrome all of the muscle in the compartment dies and that plaintiffs wanted to present the contrary testimony of Dr. London. The memorandum stated that Dr. London had read Dr. Kulick's deposition and that he was therefore aware of his opinions but that plaintiffs had not covered this subject when they had examined Dr. London during their case in chief. The memorandum also contended that Code of Civil Procedure section 2034.310, subdivision (b)*fn11 foreclosed plaintiffs from calling Dr. London in rebuttal.
During the hearing on this matter held on Tuesday morning,*fn12 FCH's counsel stated that Dr. Kulick had testified in his deposition that in a compartment syndrome all of the muscle in the compartment dies. Counsel read the following question and answer from Dr. Kulick's deposition: "'Question: And what was inconsistent with a compartment syndrome at the time of amputation? [¶] Answer: Most of the compartment syndromes I have been involved with, the entire compartment is involved. Reading the reports from, I believe, Dr. Meals [from UCLA Medical Center], he had the proximal*fn13 portion of his forearm completely spared which for me is more consistent with what I think happened with a crushed component.'"
After listening to argument by both sides, the trial court concluded, clearly referring to Code of Civil Procedure section 2034.310, subdivision (b) (see fn. 10, ante), that "What I think you're [plaintiffs] offering here is rebuttal evidence. Under the law what you're allowed to do is add foundational fact, not contrary evidence. I'm not going to allow you to call Dr. London at this time."
In its verdict, the jury specifically found that Mr. Muller did not have a compartment syndrome while at FCH.
3. The Order Granting a New Trial
The trial court granted the motion for new trial on the ground that an error of law had been committed. (Code Civ. Proc., § 657.) We ...