California Court of Appeals, Second District, Seventh Division
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.
[Copyrighted Material Omitted]
Henriks and Yana G. Henriks, Los Angeles, for Plaintiff and
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.
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  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
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.
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.
FACTUAL 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.
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 experience ...."
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.
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.
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."
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 [254
Cal.Rptr.3d 857] 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
Dr. Akopyan’s case
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
closing arguments, Dr. Akopyan’s attorney, Robert Packer,
argued Unzueta had failed to prove Dr. Akopyan’s care caused
arguing it "was the result of a rare but well-described
phenomenon of nerve compression, both external and internal,