California Court of Appeals, Second District, Seventh Division
from a judgment of the Superior Court of Los Angeles County,
No. BC495137 Anthony J. Mohr, Judge.
McMurray Henriks and Yana G. Henriks for Plaintiff and
Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, Zena
Jacobsen; Packer, O'Leary & Corson, Robert B. Packer
and Paul M. Corson for Defendant and Respondent.
Unzueta appeals from a judgment entered after a jury trial in
favor of defendant Asmik Akopyan, M.D., on Unzueta's
action for medical malpractice. Dr. Akopyan served as the
anesthesiologist during the birth of Unzueta's child,
after which Unzueta's right leg was permanently
paralyzed. The jury found Dr. Akopyan breached the duty of
care she owed Unzueta, but the breach did not cause
Unzueta's paralysis. On appeal, Unzueta contends the
trial court erred in denying the
Batson/Wheelermotion the court made sua sponte
after Dr. Akopyan's attorney exercised peremptory
challenges to six Hispanic prospective jurors out of his
seven total challenges. Unzueta argues the court erred in not
requiring defense counsel to offer nondiscriminatory reasons
for his first four challenges that formed the basis of the
trial court's prima facie finding of racial bias. We
conditionally reverse for the limited purpose of conducting
the second and third steps of the Batson/Wheeler
inquiry as to all six challenged Hispanic jurors. The
prohibition against the exercise of peremptory challenges to
exclude prospective jurors on the basis of race or other
group bias applies to civil as well as criminal cases. We
credit the trial court for raising a Batson/Wheeler
challenge on its own motion. But once the court found a prima
facie showing of racial bias as to all six Hispanic
prospective jurors, it was required to elicit from Dr.
Akopyan's attorney justifications for each of the six
prospective jurors, including the four prospective jurors
excused the prior day and the two excusals that immediately
precipitated the court's sua sponte motion. On remand the
court should require defense counsel to state his reasons for
challenging the first four prospective jurors, and the court
must decide in light of the record as to all six jurors
whether Unzueta has proved purposeful racial discrimination.
If the court finds it cannot adequately perform the second
and third stages of the Batson/Wheeler
analysis on remand because of the passage of time or other
reason, or if it determines Dr. Akopyan's attorney
exercised the peremptory challenges based on racial bias, it
should set the case for a new trial. If the court finds Dr.
Akopyan's attorney exercised his peremptory challenges in
a permissible fashion, it should reinstate the judgment.
also contends the trial court erred in excluding evidence of
Dr. Akopyan's dishonesty in representations she made to
obtain her medical license and denying Unzueta's motion
to exclude testimony from Dr. Akopyan's expert for
failure to designate the witness as an expert. Further,
Unzueta asserts defense counsel's closing argument was
improper. As to these contentions, we affirm.
AND PROCEDURAL BACKGROUND
November 6, 2012 Unzueta filed her complaint against Dr.
Akopyan, Adventist Health White Memorial Medical Center
(White Memorial), and 50 Doe defendants alleging medical
malpractice in the delivery of her first child. Unzueta
alleged Dr. Akopyan's negligent administration of an
epidural injection resulted in “paralysis of her right
leg from the knee down.”
Designation and Deposition of Expert Witness Dr. Zakowski
August 5, 2014 White Memorial served its designation of
expert witnesses on Unzueta. White Memorial designated Mark
Zakowski, M.D., and stated, “The general substance of
the testimony that this expert witness is expected to give:
standard of care, causation and damages.”
March 12, 2015 White Memorial served its second designation
of expert witnesses on Unzueta, in which it again designated
Dr. Zakowski to testify on the “standard of care,
causation and damages.” Dr. Akopyan did not include Dr.
Zakowski in her expert witness designations. However, Dr.
Akopyan reserved “the right to call any expert witness
identified by any other party.” On July 2, 2015 Unzueta
deposed Dr. Zakowski.
trial, White Memorial settled with Unzueta and withdrew its
designation of Dr. Zakowski. On February 3, 2017 Unzueta
filed a motion in limine (No. 3) to exclude Dr.
Zakowski's testimony at trial on the basis Dr. Akopyan
had failed to designate him as her expert witness. Unzueta
also argued Zakowski's testimony was cumulative of the
testimony of Dr. Akopyan's designated anesthesiology
expert, Dr. Kevin Becker. Dr. Akopyan opposed the motion,
arguing she could properly rely on the expert designation by
codefendant White Memorial because Unzueta deposed Dr.
Zakowski on July 2, 2015. The trial court denied the motion
to exclude Dr. Zakowski without prejudice.
trial, Unzueta filed another motion in limine (No. 4) seeking
to limit the scope of Dr. Zakowski's testimony by barring
testimony as to the standard of care applicable to Dr.
Akopyan. Unzueta argued that because Dr. Zakowski was
designated as the expert for White Memorial, she deposed him
only as to the standard of care applicable to White
Memorial's nursing staff, not Dr. Akopyan. Unzueta
attached excerpts from her deposition of Dr. Zakowski in
which he stated he would not be testifying on the standard of
care applicable to Dr. Akopyan. Unzueta in her motion did not
seek to preclude Dr. Zakowski's testimony on causation.
In the excerpts of Dr. Zakowski's deposition attached to
Unzueta's motion, counsel for White Memorial stated,
“[H]e does have some opinion as to what caused this
injury based on his background, training, education and
hearing on March 1, 2017 during trial, the court clarified it
had granted motion in limine No. 4, precluding Dr. Zakowski
from testifying about standard of care, but allowing him to
testify about causation.
Unzueta's Offer of Proof Regarding Dr. Akopyan's
Criminal Record and Medical License Applications
February 8, 2017 Unzueta filed a written “offer of
proof, ” seeking to admit evidence Dr. Akopyan was
convicted in 1992 of theft (Pen. Code, § 484, subd.
(a)), was arrested but not convicted in 1999 for the same
offense, and had concealed her criminal record from the
Medical Board of California (Medical Board) in her 1999
application for a medical license and subsequent renewals.
Unzueta sought to introduce testimony from Dr. Akopyan about
these events; testimony from Dr. Akopyan's husband, Dr.
Manvel Michael Mazmanyan, regarding his participation in
these events and his criminal conviction and license
suspension; certified court records from Drs. Akopyan's
and Mazmanyan's criminal cases; and records from the
Medical Board regarding the licensure of Drs. Akopyan and
Mazmanyan. Dr. Akopyan opposed introduction of the proposed
evidence and requested an opportunity to investigate
Unzueta's allegations. The trial court ordered the
Medical Board to produce to the court Dr. Akopyan's
medical licensure and renewal applications.
hearing, the trial court excluded all evidence of Dr.
Akopyan's criminal record and medical license
applications. The trial court found, “[T]here's no
question she failed to disclose a misdemeanor conviction from
1992. [¶] That is extremely remote to the point where I
think Evidence Code [section] 352's factor[s]
substantially outweigh its probative value.” The court
noted 15 years had passed since Dr. Akopyan had last failed
to disclose her conviction on her 2002 medical license
application. The court reasoned, “At some point, you
know, these transgressions have got to fade into
black.” The trial court also found Dr. Akopyan had not
lied on her medical license renewal applications because the
applications asked only whether Dr. Akopyan had “been
convicted of any felony or any crime in any state since you
last renewed, ” which she had not. With respect to the
evidence relating to Dr. Mazmanyan's conviction, the
court found “the [Evidence Code section] 352 factors
with the husband are just overwhelming.”
Testimony at Trial
August 26, 2011 White Memorial admitted Unzueta for the
delivery of her baby. Unzueta testified she was in great pain
when she arrived at the hospital to give birth. Dr. Akopyan
administered an anesthetic by epidural injection for the
pain. A nurse provided Unzueta with a document to sign
providing her informed consent to the epidural anesthesia,
but Dr. Akopyan injected Unzueta with the epidural before she
signed the document. Dr. Akopyan did not explain the
procedure or examine Unzueta. Unzueta would not have
consented had she been informed the epidural presented a risk
of permanent nerve injury. After the injection, Unzueta
immediately began to shake, so nurses brought her a blanket.
The anesthetic did not reduce Unzueta's pain, so Dr.
Akopyan administered a second epidural injection.
the final stage of the delivery, the nurses, the baby's
father, and the baby's paternal grandmother held
Unzueta's legs. Unzueta gave birth to a healthy baby.
After the birth, Unzueta was numb in both of her legs. Her
left leg regained feeling, but her right leg did not. Unzueta
never regained full use of her right foot.
presented expert testimony from Drs. Karl Norris, Hyman
Gross, and Sherman Shlomo Elspas that Dr. Akopyan's
conduct fell below the standard of care and caused
Unzueta's injury either by the administration of
epinephrine in the epidural injection or by the epidural
needle damaging the nerve root through direct
Akopyan testified as to her procedure for administering
epidural injections. She acknowledged the first epidural
injection she administered to Unzueta was not effective, but
explained, “It's a common practice to replace
epidurals.” Dr. Akopyan opined she could not have
damaged the nerve responsible for Unzueta's injury
because the damaged nerve was in Unzueta's leg above the
knee, whereas the epidural needle was placed in her back. Dr.
Akopyan also testified that damage to the nerve in the leg
was a “very common complication” for a person who
gives birth in the position Unzueta was in.
Becker, an anesthesiologist, opined Dr. Akopyan's
treatment of Unzueta met the standard of care and did not
cause Unzueta's injury. He testified anesthesiologists
commonly need to administer a second epidural when the first
proves unsatisfactory, which is not a sign of medical
negligence. Dr. Becker found from his review of Dr.
Akopyan's records that she recorded inaccurate blood
pressure readings, but the errors did not contribute to
Unzueta's injury. He opined the epidural injection
administered to Unzueta's back was too far from the
damaged nerve in Unzueta's leg to have caused the injury.
Further, there was no evidence Dr. Akopyan struck a nerve
during the administration of either epidural injection.
Zakowski, an obstetric anesthesiologist, opined it was
reasonably medically probable Unzueta's injury was caused
by the force of labor or external compression by the
positioning of her legs during the labor and delivery.
Further, there was “zero” probability
Unzueta's injury was caused by epinephrine contained in a
test dose for the epidural placement, and there was “no
way physically” for an epidural needle in the lower
part of Unzueta's back directly to strike the nerve root
located above the knee to cause Unzueta's injury. Dr.
Zakowski opined it was not reasonably medically probable
Unzueta's injury was caused by the epidural injections.
closing arguments, Dr. Akopyan's attorney, Robert Packer,
argued Unzueta had failed to prove Dr. Akopyan's care
caused Unzueta's injury, arguing it “was the result
of a rare but well-described phenomenon of nerve compression,
both external and internal, from forces of labor.”
continued, “Now, we discussed at length, I believe
during our jury selection, opening statements, that in
California and the United States, our system of what we call
civil justice, as opposed to criminal justice, we don't
impose liability. We don't take Dr. Akopyan's purse
and give it to Ms. Unzueta....” As he spoke, Packer
motioned with his hands as if to move an object from one
place to another. Unzueta's attorney, Yana Henriks, made
an objection, which the court overruled. Packer continued,
“without a proof of fault. We are a fault-based
system.” Packer went on, “In a civil case for
money damages, based upon negligence, professional or
otherwise, the plaintiff has to prove that the defendant was
at fault, just as a plaintiff who might sue you or you might
sue somebody some day in the future has that burden of
respect to economic damages, Packer argued,
“[T]here's no evidence of income loss in this-in
the past or reasonably certain to occur in the future.”
Packer asserted Unzueta's injury did not prevent her from
being employed, but “[i]nstead she would like to be
supported the rest of her life by Dr. Akopyan at an enormous
amount of money. I think the figure was $875, 000.”
Henriks did not object. Packer continued, “From the
time of her birth of her baby until today she's been a
Medi-Cal recipient.... Medi-Cal has paid over... [s]ix years,
$1200....” At this point, Henriks made an objection,
which the trial court overruled.
jury returned a special verdict for Dr. Akopyan, finding Dr.
Akopyan was “negligent in the care and treatment”
of Unzueta, but Dr. Akopyan's negligence was not ...