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Unzueta v. Akopyan

California Court of Appeals, Second District, Seventh Division

November 18, 2019

Zulma UNZUETA, Plaintiff and Appellant,
Asmik AKOPYAN, Defendant and Respondent.

         [254 Cal.Rptr.3d 854] APPEAL from a judgment of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Conditionally reversed and remanded with instructions.

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[Copyrighted Material Omitted]

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         McMurray Henriks and Yana G. Henriks, Los Angeles, for Plaintiff and Appellant.

         Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, San Marino, Zena Jacobsen; Packer, O’Leary & Corson, Robert B. Packer and Paul M. Corson, Pasadena, for Defendant and Respondent.


         FEUER, J.

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          Zulma 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 / Wheeler [1] motion 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 agree.

         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

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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.

         [254 Cal.Rptr.3d 855] Unzueta 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.


          A. The Complaint

         On 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."

          B. Designation and Deposition of Expert Witness Dr. Zakowski

          On 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."

          On 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.

         Before 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

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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.[2]

          During 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 experience ...."

          At a hearing on March 1, 2017 during trial, the court clarified it had granted motion in limine No. 4, precluding Dr. [254 Cal.Rptr.3d 856] Zakowski from testifying about standard of care, but allowing him to testify about causation.

          C. Unzueta’s Offer of Proof Regarding Dr. Akopyan’s Criminal Record and Medical License Applications

         On 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.

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          After a 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."

          D. Testimony at Trial

          1. Unzueta’s case

         On 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.

          During 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.

         Unzueta presented expert testimony from Drs. Karl Norris, Hyman Gross, and Sherman Shlomo Elspas that Dr. Akopyan’s [254 Cal.Rptr.3d 857] conduct fell below the standard of care and caused Unzueta’s injury either by the administration of

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epinephrine in the epidural injection or by the epidural needle damaging the nerve root through direct contact.[3]

          2. Dr. Akopyan’s case

         Dr. 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.

         Dr. 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.

         Dr. 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.

          E. Closing Arguments

         During closing arguments, Dr. Akopyan’s attorney, Robert Packer, argued Unzueta had failed to prove Dr. Akopyan’s care caused Unzueta’s injury,

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arguing it "was the result of a rare but well-described phenomenon of nerve compression, both external and internal, ...

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