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Kabran v. Sharp Memorial Hospital

California Court of Appeals, Fourth District, First Division

May 20, 2015

BERTHE FELICITE KABRAN, as Successor in Interest, etc., Plaintiff and Respondent.
v.
SHARP MEMORIAL HOSPITAL, Defendant and Appellant.

[REVIEW GRANTED BY CAL. SUPREME COURT]

APPEAL from an order of the Superior Court of San Diego County No. 37-2010-00083678- CU-PO-CTL, John Meyer, Judge.

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COUNSEL

Berman & Riedel, William Michael Berman; Kenneth M. Sigelman & Associates, Kenneth M. Sigelman, Penelope A. Phillips; and Jon R. Williams for Plaintiff and Respondent.

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Lotz, Doggett & Rawers, Jeffrey S. Doggett and Evan J. Topol for Defendant and Appellant.

OPINION

O'ROURKE, J.

Defendant and appellant Sharp Memorial Hospital doing business as Sharp Rehabilitation Center (Sharp) appeals from an order granting plaintiff and respondent's Berthe Felicite Kabran's motion for new trial following a special verdict on a cause of action for medical malpractice in which the jury found Sharp was negligent in the care and treatment of plaintiff's predecessor, Dr. Eke Wokocha, but that the negligence was not a substantial factor in causing harm.[1] Sharp contends the trial court acted in excess of its jurisdiction by granting a new trial because the motion was untimely, rendering the order void. It further contends the court abused its discretion because the evidence proffered by plaintiff in support of the new trial motion was cumulative and consistent with defense expert trial testimony, and thus would not change the outcome of the trial. We conclude that no jurisdictional defect appears in the court's new trial order and, as a result, Sharp may not raise its appellate contentions as to the motion's timeliness for the first time on appeal. We further conclude the trial court did not manifestly abuse its discretion in assessing the new evidence-results of an autopsy conducted on Dr. Wokocha-and ruling on this record that plaintiff should be granted a new trial. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Dr. Wokocha began developing weakness in his upper extremities. By early 2009, he was experiencing progressive numbness, tingling, and weakness in his limbs, requiring him to use a wheelchair and walker. Medical resonance imaging (MRI) conducted in late 2008 showed two distinct problems in the same location of his cervical spine: narrowing of the spinal canal (cervical stenosis) as well as a mass, later determined to be a low-grade astrocytoma or tumor, on the back side of his spinal cord. Dr. Wokocha underwent spinal decompression surgery on January 7, 2009, and five days later was transferred to Sharp's rehabilitation center. After the evening of January 16, 2009, while at Sharp, he experienced a rapid decline in his condition resulting in complete quadriplegia.

Dr. Wokocha sued Sharp and others for negligence, and trial commenced in October 2012. The case was tried in part on the theory that while at Sharp

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Dr. Wokocha was mishandled by an occupational therapist during an attempted transfer from his bed to a shower commode chair, resulting in spinal shock and active bleeding (a hematoma), which caused his rapid deterioration to quadriplegia.[2] The parties presented conflicting expert testimony on the issues of negligence and causation, including testimony based on the appearance of various MRIs taken of Dr. Wokocha's spine in January and February 2009, July 2011, and August 2012. The jury returned a special verdict finding Sharp was negligent in its care and treatment of Dr. Wokocha, but that the negligence was not a substantial factor in causing him harm.

On March 1, 2013, Kabran timely filed and served her notice of intention to move for a new trial on grounds, among others, of newly discovered evidence. Several days later, pursuant to the parties' stipulation, the court granted her an extension of time until Monday, April 1, 2013, which happened to be a court holiday, to file and serve her motion and supporting affidavits. On April 2, 2013, Kabran personally served her notice of motion and motion for new trial, along with two supporting declarations. She attempted to file the papers in the superior court that day, but ultimately, because the requisite filing fee was not paid, the court clerk cancelled the file stamp and did not process the motion.[3] On April 3, 2013, Kabran successfully applied ex parte for an order setting the new trial motion for hearing on April 12, 2013. The court ordered Sharp's opposition papers to be filed and served by noon on April 10, 2013. Kabran's new trial motion was eventually filed with the court on April 5, 2013, and her supporting declarations were filed on April 9, 2013.

Kabran's new trial motion asserted newly discovered evidence, namely, the results of an autopsy assertedly showing that the damage to Dr. Wokocha's spine was not the result of his tumor, and that "the [defense] witnesses who testified that the markedly abnormal area on [the] MRI consisted entirely of a malignant astrocytoma, and/or that it was unrelated to trauma, were wrong." In support of the motion, Kabran submitted a declaration from Guerard Grice, M.D., who with another doctor had performed an autopsy, removed Dr. Wokocha's brain and spinal cord, and examined slides of tissue blocks taken from the cervical spinal cord. Kabran also submitted a declaration from her trial expert Jeffrey Gross, M.D., a neurological surgeon. Kabran argued that the tissue obtained from the autopsy from the "obliterated" portion of Dr. Wokocha's cervical spinal cord, which was "in sufficient quantity to view

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grossly and microscopically so as to arrive at a definitive diagnosis, " required a new trial. Sharp opposed the motion on the merits without raising any issue about its timeliness.[4]

After hearing arguments on the matter, the trial court granted the motion. It ruled there was a probability Dr. Grice's opinion would render a different result in a new trial, and the new evidence could not with reasonable diligence have been discovered and produced at trial.

Sharp filed this appeal.

DISCUSSION

I. Timeliness of New Trial Motion

Sharp has advanced several theories to contend that plaintiff's motion for new trial was untimely such that the trial court had no jurisdiction to consider it. It initially argued plaintiff's new trial motion and supporting affidavits were filed two days beyond the statutory time limit for filing the motion. Plaintiff responded by pointing out there was an intervening holiday so that the last day to file the motion and affidavits was April 2, 2013. Sharp has conceded that narrow point.

Sharp now contends the new trial motion was untimely because plaintiff did not pay the required filing fee until April 5, 2013, after the prescribed time limit for filing the motion. Responding to plaintiff's argument that Sharp forfeited timeliness contentions by failing to raise them in the trial court, Sharp argues the statutory time periods, including the periods in which to file opposing papers or affidavits in support of a new trial ...


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