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SUSAN KAY LAWSON v. KEVIN ALAN WAITS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)


November 30, 2010

SUSAN KAY LAWSON, PLAINTIFF AND APPELLANT,
v.
KEVIN ALAN WAITS, DEFENDANT AND RESPONDENT.

(Super. Ct. No. 57970)

The opinion of the court was delivered by: Raye , Acting P.J.

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal arises from a medical malpractice action in which plaintiff Susan Kay Lawson alleges that defendant Dr. Kevin Alan Waits negligently performed a hysterectomy, which resulted in complications due to a perforated bowel. On appeal from a stipulated judgment, Lawson contends the trial court erred in precluding her trial attorney from testifying about a statement made to him by a physician who examined a key tissue sample.

We shall dismiss the appeal because the judgment entered pursuant to a stipulation is non-appealable.

FACTUAL AND PROCEDURAL HISTORY

Lawson's medical malpractice action was based on the contention that Dr. Waits breached the standard of care by suturing her bowel when closing the hysterectomy surgery wound, thereby causing a perforation of her bowel. Lawson intended to prove that her perforated bowel was discovered five weeks after the hysterectomy surgery when Dr. William Gentry performed a colonoscopy. During subsequent exploratory surgery, Dr. Gentry discovered that the transverse colon had been pulled down into the pelvis and attached to the abdominal wall. The perforation of her bowel was observed where the transverse colon was attached to the abdominal wall. In repairing the colon, Dr. Gentry removed part of it and sent the tissue to a lab for analysis. Dr. Don V. Stanton examined the removed section of the colon and discovered a medical suture in the area of the perforation.

Prior to the scheduled start of trial, Dr. Waits filed an in limine motion to exclude testimony by Lawson's trial attorney, Robert L. Davis, regarding a conversation he had with Dr. Stanton. Davis declared that he spoke with Dr. Stanton about "the length of time the suture that he had found had been in the transverse colon." Davis claimed Dr. Stanton said, "that while he couldn't be precise, 'it had been there for some time.'"

A "new" suture would have been part of the repair of the bowel by Dr. Gentry, but an "old" suture would have indicated that Dr. Waits caused the bowel perforation during the hysterectomy. During Dr. Gentry's deposition, he indicated that his operating procedure rendered him likely to have been the person to have placed the suture.

In opposing the in limine motion, Davis explained that he based the medical malpractice action on the opinion of Dr. Victor Chan before speaking with Dr. Stanton. Davis declared:

"Contrary to the implication in the defendant's motion that Dr. Chan based his opinion that Dr. Waits had sutured the bowel to the abdominal wall only after I had told him that Dr. Stanton had told me that the suture was old, Dr. Chan testified during his deposition:

"Q. When did you first form your opinions about how Dr. Waits breached the standard of care in this case?

"A. I think it was the first time I actually read the records.

"Q. And that included reading the pathologist's report about the suture?

"A. As well as the operative summary from the surgeon."

Davis intended, at trial, to portray Dr. Gentry's deposition testimony as calculated to "protect" Dr. Waits. Davis also sought to discredit Dr. Stanton's deposition testimony, in which the doctor denied saying that the suture "had been there for some time." Davis was prepared to offer his own testimony to refute Dr. Stanton's deposition testimony.

At a hearing on the in limine motion, Davis argued that his testimony was "critical to [his] client's case." The trial court responded:

"THE COURT: You better get another lawyer. I just think it compromises the integrity of the process to have the advocate become the witness become the advocate, that's, that's -- I know it's a rule, say, and I know it's discretion of the Court and I just think this case -- it reflects upon the integrity of the system to have the lawyer being a witness in a case. I've got a problem with it.

"MR. DAVIS: Well, if it's the Court's inclination to --

"THE COURT: It is.

"MR. DAVIS: -- to recuse me, then I would ask for a continuance to allow my client time to retain the assistance of another attorney.

"THE COURT: It's not my intention to recuse you at all, I'm just saying you can't testify in the case. You can still be the lawyer. I'm not telling you not to be an attorney, I'm telling you you can't be a witness.

"MR. DAVIS: Well, in that case, Your Honor, I believe that this is a determinative ruling by the Court, and I guess what I would seek from Defense Counsel is a stipulation that this is a determinative ruling that precludes the Plaintiff from any reasonable chance of prevailing in the case, and that we stipulate to a judgment based upon that for the purposes of pursuing an appeal without wasting the Court's and Counsel's time in trying a case for which the Plaintiff has no chance of winning."

Defense counsel was unwilling to stipulate to entry of judgment without first consulting with his client. The court then addressed Davis's argument as follows:

"THE COURT: So, before you filed the suit, you did your due diligence, Dr. Chan reviewed the medical records, Dr. Chan opines this is clearly medical negligence, you file a lawsuit. Subsequent to that, you talk to some doctor who makes a statement that now he repudiates and therefore you have no case?

"MR. DAVIS: That's right, Your Honor."

The court ruled that Davis could not testify regarding his conversation with Dr. Stanton while serving as Lawson's trial counsel. The next day, Davis sought and received a continuance to allow Lawson to retain new counsel.

In November 2009 Lawson filed a "stipulation for judgment" stating that "defendant is willing to stipulate that . . . entry of judgment pursuant to stipulation would not preclude appellate review, pursuant to Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399 . . . ." The stipulated judgment was entered "in order to facilitate an appeal following what the plaintiff believes to be an adverse determination of a critical issue, and with no intention by the plaintiff to abandon her right to be heard on the appeal in opposition to that determination . . . ."

This appeal followed.

DISCUSSION Appealability of a Stipulated Judgment

Lawson asserts, "This appeal is from . . . stipulated judgment, pursuant to Norgart v. Upjohn Co. (1991) 21 Cal.4th 383, 399." We conclude that the appeal must be dismissed.

A

"Ordinarily, a judgment entered pursuant to a stipulation is not appealable." (Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1267.) However, in Norgart v. Upjohn Co., the California Supreme Court recognized "at least one 'exception,' namely, that '[i]f consent was merely given to facilitate an appeal following adverse determination of a critical issue, the party will not lose his right to be heard on appeal.' (Building Industry Assn. v. City of Camarillo [(1986)] 41 Cal.3d [810,] 817.) In Connolly v. County of Orange (1992) 1 Cal.4th 1105 . . . , we, in part, paraphrased and, in part, quoted Building Industry Assn.: 'Although a consent . . . judgment is not normally appealable, an exception is recognized when "consent was merely given to facilitate an appeal following adverse determination of a critical issue."' (Connolly v. County of Orange, supra, 1 Cal.4th at p. 1111.) For, in the words of Building Industry Assn. itself, 'it is "wasteful of trial court time" to require the plaintiff to undergo a probably unsuccessful . . . trial merely to obtain an appealable judgment.' (Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at p. 817.)" (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 400, italics added.)

Norgart v. Upjohn Co. has been interpreted as "allowing appellate review of a stipulated judgment where the intent of the parties is not to resolve the action by stipulation, but instead to obtain appellate review of a dispositive adverse ruling." (Magana Cathcart McCarthy v. CB Richard Ellis, Inc. (2009) 174 Cal.App.4th 106, 120-121 [collecting authority], italics added.)

B

In this case, the trial court's ruling that Davis could not provide both impeachment testimony and serve as legal counsel was not a dispositive adverse ruling. As the trial court noted, Davis's filing of the complaint represented a determination that Lawson had a claim for medical malpractice based on Dr. Chan's confidence that Dr. Waits breached the standard of care. Dr. Chan's opinion regarding medical malpractice was not undermined by the inability of Davis to provide testimony impeaching Dr. Stanton's deposition statements. Nor did Davis's inability to testify render unavailable any of the medical records upon which Dr. Chan based his opinion.

The inability of Davis to provide impeachment testimony was not a dispositive adverse ruling because it did not undermine any part of the evidence plaintiff's counsel relied upon in filing the complaint and proceeding with the litigation for more than a year. The filing of the complaint may be deemed a good faith determination that Davis believed his client had a viable case of medical malpractice. Consequently, we need not accept Davis's assertion that the trial court's exclusion of impeachment testimony was critical to Lawson's case. To the contrary, we conclude that the in limine ruling did not constitute a dispositive adverse ruling. (Magana Cathcart McCarthy v. CB Richard Ellis, Inc., supra, 174 Cal.App.4th at pp. 120-121.)

The stipulated judgment does not follow an "adverse determination of a critical issue" because the trial court's ruling did not prevent Lawson from relying on any records or expert opinion upon which her complaint was founded. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 400.)*fn1 Consequently, the appeal must be dismissed because it does not fall into the exception to the rule that stipulated judgments are non-appealable. (Adoption of Matthew B., supra, 232 Cal.App.3d at p. 1267.)

DISPOSITION

The appeal is dismissed. Defendant shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

We concur:

HULL ,J.

ROBIE ,J.


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