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Staub v. Kiley

California Court of Appeals, Third District, Sacramento

May 20, 2014

GEORGE STAUB et al., Plaintiffs and Appellants,
v.
JAMES M. KILEY et al., Defendants and Respondents.

APPEAL from a judgment of the Superior court of Sacramento County, No. 34200800029754-CUMMGDS Trena H. Burger-Plavan, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

George and Julianne Staub, in pro. per., for Plaintiffs and Appellants.

Thomas G. Minder & Associates, Thomas G. Minder and Randi L. Fujimoto for Defendants and Respondents.

OPINION

HULL, J.

Plaintiffs George and Julianne Staub appeal pro se from the judgment entered in favor of defendants James M. Kiley (Kiley) and the Regents of the University of California (Regents) following defendants’ successful motion for nonsuit.

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In this action for medical malpractice, the trial court granted defendants’ in limine motion precluding plaintiffs’ expert witnesses from testifying at trial, on the ground plaintiffs unreasonably failed to timely disclose their designated trial experts after receiving a statutory demand from defendants. (Code Civ. Proc., §§ 2034.220, 2034.300, 2034.720; unless otherwise stated, statutory references that follow are to the Code of Civil Procedure.) Without designated experts, plaintiffs could not address at trial the element of causation of injury from the alleged medical negligence (see Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [8 Cal.Rptr.3d 363]) and the trial court found plaintiffs were likewise precluded without designated experts from maintaining their causes of action for lack of informed consent and fraudulent concealment.

On appeal, plaintiffs argue the trial court erred in granting defendants’ in limine motion because (1) defendants themselves failed to comply with the expert disclosure demand requirements, and (2) the trial court erred in concluding plaintiffs acted unreasonably in disclosing their trial experts after “a minor and nonprejudicial delay.” Finally, plaintiffs contend that, even if the court refused to allow their designated experts to testify, it should have allowed trial to proceed on the cause of action for “informed refusal.”

We agree with plaintiffs that defendants lacked standing to move to exclude plaintiffs’ experts from testifying at trial, and the trial court erred in concluding plaintiffs so unreasonably failed to comply with the expert disclosure demand that their experts could be properly excluded from testifying. Accordingly, we reverse the judgment and order the matter reinstated.

Facts And Proceedings

A. Pleadings and Overview of Plaintiffs’ Claims

The background facts are summarized from the first amended complaint.

We note that George Staub was the individual who received the allegedly negligent medical treatment by defendants. When referring to those events, we refer to George by his first name.

In May 2008, George was admitted to Mercy Hospital of Folsom with pain and swelling in his left leg and severe pain in his left groin. George was treated by Kiley, his primary care physician. Although George was diagnosed with deep vein thrombosis, no ultrasound or other procedure was performed which would have revealed the presence of a condition called May-Thurner Syndrome, treatment of which must begin within a week or two of the first symptoms to be effective. This occurred even though Kiley was informed by

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a specialist that the likely cause of George’s pain was May-Thurner Syndrome, a fact he did not share with George. George was discharged over his objection and continued to experience pain; Kiley never ordered an ultrasound or other procedure to determine whether the cause of the pain was May-Thurner Syndrome.

In June 2008, George saw another physician and an ultrasound was performed at Regents’ UC Davis Medical Center. Doctors there observed additional clotting extending in the left groin, but they did not test for May-Thurner Syndrome.

Doctors at Stanford Hospital tested George and discovered he suffered from May-Thurner Syndrome in January 2009, when it was too late for treatment. He now must take anticoagulants for the rest of his life and his pain and symptoms will never resolve.

Plaintiffs initiated this action against Kiley and others for medical malpractice, alleging that defendants’ failure to properly treat George caused his extensive and permanent injuries. They also stated a cause of action for loss of ...


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