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Carl R. Massey v. Catholic Healthcare West

December 21, 2012


(Super. Ct. No. 159473)

The opinion of the court was delivered by: Butz , J.

Massey v. Catholic Healthcare West



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In December 2009, we reversed the dismissal of plaintiff Carl R. Massey's action for "medical" negligence upon the grant of a motion for non-suit after his opening statement, finding that the alleged act of negligence posed only questions of common knowledge and thus did not require expert testimony. (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 692-694, 697.)*fn1 [1]

After a retrial involving eight days of testimony, the jury deliberated for one and a half days. On December 3, 2010, it returned its verdict finding CHW negligent for medical expenses of $7,500 and non-economic losses of $5,000. The trial court subsequently granted CHW's motion to reduce the economic damages to $1,290 (rounded) to conform to the only evidence of such damages at trial. It also awarded costs to CHW as the prevailing party, Massey having rejected a May 2010 settlement offer of $40,000. (Code Civ. Proc., § 998.) The court thus entered a net judgment in favor of CHW in April 2011. Massey filed a timely notice of appeal.*fn2 [2]

Echoing an unsuccessful motion for judgment notwithstanding the verdict (JNOV) or new trial on the issue of damages, Massey challenges numerous rulings of the trial court: the denial of motions to reopen discovery before retrial, and to grant a continuance on the basis of illness; the exclusion of evidence of incurred medical costs to which the parties had stipulated in lieu of a deposition, and the exclusion of testimony from his expert regarding the extent to which these costs were caused by Massey's fall, necessary, and reasonable; the omission of future pain and suffering from an instruction and the special verdict form, and the restrictive definition of compensable past damages; the failure to give requested pattern instructions regarding (1) aggravation of pre-existing conditions and (2) unusually susceptible plaintiffs; the exclusion of testimony on the issue of the need for future care from his wife causally related to his fall; and the exclusion of testimony from one of his experts that his injury caused depression and that he did not suffer from somatoform disorder. We shall affirm the judgment.

Given the context-specific procedural nature of the various arguments that Massey raises, we will incorporate the pertinent facts in the Discussion rather than provide a separate summary of the evidence at trial (particularly as neither of the parties has attempted to synthesize an overview of the testimony of the individual witnesses). For purposes of orientation, the injury occurred in March 2006 at CHW's Redding facility, where Massey had just undergone surgery to improve the diabetes-impaired circulation in his legs that was causing gangrene in his toes. Nurse O'Bar left the 65-year-old Massey unattended in a walker after helping him out of bed to go to the bathroom. When he lost patience and tried to move on his own, Massey fell backward, hitting his back and head against the wall. He incurred a compression fracture to his T12 vertebra (the bottom thoracic vertebra).


We note several general matters at the outset. First, Massey has divorced his analysis of his arguments from their factual underpinnings and the supporting record citations, which appear only in the opening brief's lengthy statement of the case and the facts. As we have noted in the past, this is extremely vexing for the staff attorneys and appellate justices of the court, and is grounds of itself for declaring his claims forfeited. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16.) We have, however, done our best to piece these disparate parts together. Second, we disregard any arguments that do not appear under a heading embracing them in the argument section of his brief. (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061-1062, fn. 7 (Sourcecorp).) Third, when confronted with issues lacking cogent argument or authority--in particular, an inadequate analysis of the manner in which a ruling was unreasonable or arbitrary on the facts before the trial court or the prejudicial effect of any purported error--we may deem them to be without merit, as we are not obligated to provide analysis on behalf of a party. (Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, 1137; Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 588, 591 & fn. 8, 593; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["[i]ssues do not have a life of their own" unsupported with argument or authority].) Fourth, and finally, to the extent Massey raises new matter in his reply brief, we will not consider it. (Sourcecorp, supra, 206 Cal.App.4th at pp. 1061-1062, fn. 7.)

I. Denial of Reopening of Discovery and Continuance Request

A month before the scheduled October 2010 trial date, Massey filed a motion to reopen discovery. He explained that his primary care provider, after consultation with a new local neurosurgeon, agreed to refer Massey to UC Davis Medical Center (UCDMC) for a determination of whether to treat problems with the L1 vertebra (the first of the lumbar vertebrae, adjacent to the repaired T12).*fn3 Massey's cardiologist thought surgery would be high-risk in light of his cardiac issues; the neurosurgeon did not want to perform high-risk surgery locally because the proper surgical facilities were unavailable. The motion requested "an order re-opening discovery with respect to [the proposed] treatment and augmenting the treating doctors as expert witnesses."

In ruling on the motion, the trial court noted that Massey did not need to reopen discovery to obtain his own medical records from the new course of proposed care. When Massey subsequently made clear that he wanted to depose the treating cardiologist, the court granted the motion for the purpose of preserving testimony about these recent developments in lieu of live testimony at trial, and otherwise denied the motion "as [it] is vague as to any other deposition or discovery being sought." It also denied the motion to the extent it sought to augment the list of retained experts to include the recent (or possibly future) medical providers, but allowed Massey to include the local neurosurgeon and cardiologist as treating physicians. It denied the motion without prejudice to the extent that it prematurely sought to augment the expert witness disclosure with future medical providers.

Two weeks before the scheduled trial date, Massey moved on shortened time for a continuance pursuant to California Rules of Court, rule 3.1332.*fn4 [4] Taking his cardiologist's advice to heart, Massey had decided against the referral to UCDMC. His overall condition had worsened (with "bad days where he is bed[-]ridden . . . and would not be able to testify") and he had been able to obtain an appointment with his treating orthopedist (who had previously told him there was nothing further he could offer surgically) a few days before the scheduled trial date. If the orthopedist decided to treat Massey surgically, this would incapacitate Massey during the scheduled time for trial. Massey also desired to depose the orthopedist in the event his opinions changed after this consultation and treatment (a deposition being more convenient to schedule with the busy orthopedist than trial testimony). In response to the ex parte application for an order shortening time, the trial court postponed the scheduled date for trial by one week. In the meantime, the orthopedist was dissatisfied with the imaging results after the appointment and wanted to take new ones. Defense counsel noted that significantly absent from Massey's showing was any indication from the orthopedist that Massey was in immediate need of surgery.*fn5 The court denied the motion without elaboration (although it later noted that it had not found good cause for a continuance because Massey's condition was "fluid" such that waiting for him to stabilize would be futile and ran the risk that he might not survive until trial).

Massey provides next to nothing in the way of argument regarding the denial of his motion to reopen discovery, beyond a misstatement of the record (flatly contrary to his own declaration in the trial court) that the denial of the motion "caused" him to abandon treatment at UCDMC and return to a treating orthopedist who had been "perhaps . . . negligent" in his assessment of Massey to date. Massey has thus failed in his obligation as an appellant to discuss all the facts that were before the trial court in making its ruling and explain how the court's resolution was arbitrary or irrational, or to provide adequate argument. ...

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