Filed 6/30/20 Hirsch v. Nicolae CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

LISA HIRSCH,

Plaintiff and Appellant,

v.

SILVIA NICOLAE, et al.,

Defendants and Respondents.

G057181

(Super. Ct. No. 30-2014-00757102)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed.

Law Offices of Don C. Burns and Don C. Burns for Plaintiff and Appellant.

Higgs Fletcher & Mack, John Morris, William A. Miller, Rachel E. Moffitt, and Ross E. Bautista for Defendants and Respondents Surgicare of La Veta, Ltd. dba La Veta Surgical Center and Surgical Care Affiliates, LLC.

Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll; Doyle Schafer & McMahon and Terrence J. Schafer for Defendants and Respondents Silvia Nicolae and Donald Ruhland.

In this medical malpractice action, Lisa Hirsch sued defendants La Veta Surgical Center (La Veta) and Surgical Care Affiliates (collectively referred to as the Surgery Center), Dr. Silva Nicolae, Dr. Donald Ruhland, Dr. Sanford L. Ratner, and Dr. Felizardo Camilon, Jr. Hirsch contends the trial court erred by granting Ruhland’s and the Surgery Center’s motions for nonsuit. She also asserts the court abused its discretion by excluding testimony from several witnesses, sustaining several hearsay objections, and limiting closing arguments to one hour per party. Finally, Hirsch argues the court erred by preventing her from offering evidence of the net amount of disability benefits she received, to rebut defense evidence of the gross amounts received. We find no error, and affirm the judgment.

FACTS

I. Events Leading up to Hirsch’s Surgery

Hirsch suffered from temporomandibular joint (“TMJ”) pain and decided to have it treated with surgery. Her oral surgeon, Ratner, gave her the option of having the procedure performed at La Veta Surgical Center or St. Joseph’s Hospital. Before making her decision, Hirsch spoke with Ruhland, medical director of La Veta. She asked Ruhland if he would serve as her anesthesiologist because they worked together at La Veta years before. Ruhland informed Hirsch he was not available for the procedure. Hirsch testified she conditioned her procedure upon the use of fiberoptic intubation, asking Ruhland “whether or not [the Surgery Center] had the appropriate equipment required and if they had somebody who was appropriately trained to do a fiberoptic intubation.” Ruhland told her the following: “We can take care of you here. We’ve got everything ready to do fiberoptic–I will find somebody who can do fiberoptic intubation.” Ruhland subsequently asked Nicolae to call Hirsch directly.

During her first telephone call with Nicolae, Hirsch asked whether Nicolae was skilled at performing fiberoptic intubation. Nicolae told Hirsch she was skilled at fiberoptic intubation, if “indicated and necessary.” Nicolae and Hirsch discussed Hirsch’s medical history, her need for anesthesia, and what the anesthesia plan would be. Hirsch’s concerns were her history of difficult intubations and severe postoperative nausea. Nicolae instructed Hirsch to bring any helpful medical records with her on the day of her procedure.

II. Hirsch’s Surgery

In November 2013, Hirsch went into surgery. In the preoperative area, Hirsch completed several forms, including an anesthesia questionnaire and patient privacy forms. Nicolae spoke to Hirsch in the preoperative area before she signed the anesthesia consent. Nicolae told Hirsch she would perform the fiberoptic intubation, if indicated and necessary.

However, as Nicolae testified: “As soon as I put the laryngoscope in

there and retracted the tongue, I could see everything. I had a grade one view of the cords.” Nicolae also explained, “there was a direct visualization of the vocal cords with a grade one view” and “the whole glottis was visible, the retinoids were visible, the vocal cords were visible.” Nicolae stated a direct view of the vocal cords is “superior view to anything you’re ever going to get through the . . . fiberoptic scope,” and that “it would be a breach of the standard of care not to take that opportunity and secure the airway.” Nicolae further explained that using fiberoptic intubation at that point would have increased the risks inherent in the procedure. Ultimately, because Nicolae had direct visualization of Hirsch’s vocal cords, glottis, and retinoids, she used a rigid laryngoscope through the mouth to intubate Hirsch, not a fiberoptic intubation, which took “less than a minute,” was “very easy,” and presented “no difficulties.”

III. Postsurgery Treatment

After the procedure, Nicolae did not have any concerns about airway trauma or pain. She also had no concerns about swelling along the airway, or about Hirsch’s oxygen levels. In the recovery room, nurse Brenda Scapellati Rose monitored Hirsch. Rose testified Hirsch’s skin was not discolored, which indicated she had sufficient oxygen. Hirsch’s postsurgery monitors measured respirations, oxygenation, pulse, and blood pressure. They never sounded an alarm indicating a problem. In addition, Hirsch’s vital signs were also normal in all categories at all phases of recovery.

Hirsch complained of a dry mouth and sore throat when she woke up from the procedure. Rose noted and recorded this in Hirsch’s chart. Hirsch testified she complained of excruciating pain in her throat. At some point, Hirsch asked to speak to a doctor. Rose asked Ruhland, who was tending to another patient, who she should contact. Ruhland told Rose to call Nicolae as the attending anesthesiologist.

Nicolae arrived to speak with Hirsch approximately 20 minutes after Hirsch asked to speak with a doctor. Hirsch told Nicolae she had a sore throat, which was a common complaint after intubation. Nicolae examined Hirsch’s throat with a pen light to see if there was any active bleeding. She saw none. Nicolae administered an anesthetic throat spray. Hirsch reported she felt better after the spray. Subsequent to her examination of Hirsch, Nicolae determined she was ready to be discharged. At the time Nicolae ordered Hirsch’s discharge, she was alert, oriented, drinking fluids, and talking.

IV. Postsurgery Issues

Once home, Hirsch drank a smoothie, took a Vicodin, and went to sleep. Later that night, at approximately 11:30 p.m., Hirsch woke up because she was in pain and having difficulty breathing. Hirsch stated she was coughing up blood and began wheezing. Hirsch used a portable pulse oximeter to check her oxygen level, which she stated was in the low 50s.

Hirsch called Ratner and described her symptoms. Ratner advised Hirsch to go to the emergency room. Hirsch’s friend Karen Natland drove Hirsch to St. Joseph’s Hospital. On the way to the emergency room, Hirsch stated she stopped coughing up blood but was still having difficulty breathing.

At the emergency room, Hirsch provided notes regarding her symptoms and medical history, which she wrote in the car. Hirsch’s oxygen levels taken in the emergency room were good. At Hirsch’s request, ear, nose, and throat (ENT) specialist, Camilon, was called in to consult. Camilon administered intravenous steroids. Camilon sent Hirsch home with prescriptions for steroids and antibiotics to prevent infection.

V. Procedural History

A. Hirsch’s Complaint

In 2014, Hirsch filed a complaint alleging claims of medical malpractice and battery against defendants La Veta Surgical Center, Surgical Care Affiliates, Nicolae, Ruhland, Ratner, and Camilon. Hirsch asserted that by not performing her intubation with a fiberoptic bronchoscope, defendants conducted the procedure outside the bounds of her informed consent, resulting in a battery. Hirsch also alleged defendants negligently performed an intubation causing “significant and permanent nerve damage and other injuries which have become permanent.” Hirsch sought damages for past and future medical care, nursing care, past and future loss of earnings capacity, severe physical pain, and emotional suffering.

B. Trial

Defense expert, anesthesiologist Jonathan Benumof, M.D., testified Ruhland complied with the standard of care in all respects. Benumof explained even if Hirsch told Ruhland she believed she needed a fiberoptic intubation and that she wanted one, the standard of care would not require Ruhland to order Nicolae to perform one. “You can’t tell another doctor to do something that may be the wrong thing” for the patient. Benumof also opined Ruhland’s instructions to Rose to call Nicolae after the procedure was “absolutely the right thing to do” because Ruhland was not involved in Hirsch’s care and as a result was in a “relatively very poor position” to address the issue.

Benumof further stated Nicolae complied with the standard of care in all respects. The standard of care did not require Nicolae to perform a fiberoptic intubation, regardless of all the information which was available to her detailing Hirsch’s prior intubations. Nothing on the consent form mandated Nicolae to perform a fiberoptic intubation. Hirsch’s personal belief that she had a difficult airway did not require the anesthesiologist to perform a fiberoptic intubation. Benumof testified there was nothing in Hirsch’s preoperative evaluation indicating she was an appropriate candidate for fiberoptic intubation. In fact, after Nicolae saw she had a grade one view of Hirsch’s vocal cords, it would have been a breach of the standard of care to perform a fiberoptic intubation. That would “throw away the best view you could possibly have.” Intubations performed with a grade one view of the vocal cords, and without exerting any force, “would have none to very minimal swelling associated with it.” Benumof stated Hirsch’s symptoms were expected after an uncomplicated intubation. Both Benumof and defense neurology expert Dr. Andrew Woo agreed that there was no evidence that Hirsch suffered a hypoxic event at La Veta or following the procedure.

Camilon, the ENT specialist who examined Hirsch in the emergency room, testified he did not find anything in his evaluation that was unexpected in a patient who had just been intubated. Hirsch’s expert Dr. Thomas Schares conceded injury to the airway occurs any time soft tissue is impacted by a foreign body, whether it is a rigid laryngoscope, a fiberoptic scope, or the endotracheal tube. Schares also confirmed he wrote an e-mail to Hirsch’s counsel stating it was not clear from the documentation provided that using a fiberoptic laryngoscope would have avoided injury to the airway.

C. Excluded Evidence

During the course of the trial, the court sustained various defense objections during the examination of witnesses. We discuss the underlying facts of each contested evidentiary ruling in their discussion below.

Hirsch also sought to introduce evidence from an accounting expert that she was only receiving $7,000 per month in disability benefits as opposed to the $12,000 defendants alleged because a portion was used to pay her attorney’s fees. Defense counsel argued Civil Code section 3333.1 entitled defendants to introduce evidence of the disability benefits Hirsch received but did not limit that evidence to the net amount. The court sustained defendants’ objection, explaining the following: “Civil Code section 3333.1 is very broad. It allowed the defense to introduce any amount payable to the plaintiff and specifies what the plaintiff can deduct from that. The only offset that the plaintiff gets to offer is evidence of amounts paid or contributed to secure his or her right. [¶] . . . Fees paid to your bad faith attorney are not fees paid to secure the right to insurance coverage.”

D. Ruhland’s Motions for Nonsuit on Battery and Negligence Claims

At the close of evidence, Ruhland moved for nonsuit on the battery claim. Ruhland argued there was no evidence before the jury that Ruhland “could properly exercise control over how . . . Nicolae provided anesthesia services, and particularly the issue of whether or not he had the ability to order her to do a fiberoptic intubation.” Ruhland further contended, “Everybody can agree there is no evidence in this case of [Ruhland] committing a battery,” and “I don’t think there’s any way to hold . . . Ruhland liable for a battery that was allegedly committed by . . . Nicolae.” Hirsch countered that “Ruhland was exercising control directly over . . . Nicolae, first in assigning her, second in questioning her competence and qualifications to render the services requested by . . . Hirsch, and finally, in the recovery room, issuing instructions for her to return to a responsibility that he didn’t want to take.”

The trial court granted Ruhland’s motion. The court determined there was no evidence to support an inference Ruhland instructed Nicolae not to perform a fiberoptic intubation. In making its ruling, the court accepted all of Hirsch’s evidence as true and disregarded the defense evidence entirely. The court asked Hirsch if there was “any evidence in the record that would support even an inference that . . . Ruhland instructed . . . Nicolae [t]o not perform a fiberoptic intubation.” Hirsch replied, “No.”

Ruhland then moved for nonsuit on the negligence claim. He asserted “there has been no testimony, whatsoever, that [Ruhland] breached the standard of care in any regard.” When addressing the medical negligence cause of action, Ruhland argued there was no expert testimony to support an inference that he breached the standard of care. Hirsch disagreed, stating Ruhland was “as responsible for the discharge before the pain was under control as any other doctor who could have relieved that circumstance.”

The trial court noted testimony from a medical expert was required to establish Ruhland’s liability for medical malpractice. Hirsch’s anesthesiology expert Schares did not testify Ruhland violated the standard of care by discharging Hirsch. The trial court granted Ruhland’s motion. The court explained the following: “the closest testimony I can give is this question and answer, ‘Question: If . . . Hirsch protested that she could not go home in this condition, did the standard of care permit her discharge without further evaluation? Answer: You cannot force a competent patient to do something against their will.’” It continued, “even if I try to draw reasonable inferences from that, that’s not quite the same as saying . . . Ruhland violated the standard of care.”

E. Nicolae’s Motion for Nonsuit on the Negligence Claim

After the close of evidence, Nicolae moved for nonsuit on the negligence claim based on the lack of causation. Ultimately, however, the trial court denied the motion. It reasoned even if Hirsch did not have direct evidence of causation and damages, she could potentially be entitled to nominal damages because of the evidence Hirsch “would not have undergone TMJ surgery until she found an anesthesiologist that guaranteed fiberoptic intubation.”

F. The Surgery Center’s Motion for Nonsuit on the Battery Claim

After the close of evidence, the Surgery Center moved for nonsuit on the battery claim. It argued there was “no evidence [the entity] itself committed the alleged harmful touching,” there was “no evidence that any of the Surgery Center staff themselves were aware that there was an alleged conditional consent[,]” and that there was no evidence supporting the claim Ruhland and Nicolae were the Surgery Center’s agents.

The trial court ruled, the Surgery Center’s “motion for nonsuit on the battery cause of action is going to be granted. With the issue of ostensible agency, the key issue really is there: by what acts or omissions did the Surgery Center allow . . . Hirsch to believe that it would be bound by . . . Nicolae’s acts and omissions? In determining that, we need to look at the Surgery Center’s statement and conduct, not at

. . . Nicolae’s. And the only statements or conduct by the Surgery Center, arguably, that would allow [Hirsch] to think that . . . Nicolae could bind the Surgery Center were the statements and conduct of . . . Ruhland, so now we have a second level of agency analysis. Is the Surgery Center bound by . . . Ruhland’s statements? The answer to that seems to be no. [¶]. . . [¶] There is no evidence to support an ostensible agency between . . . Ruhland and the Surgery Center, [which] works back to defeat the assertion that there is an ostensible agency between the Surgery Center and . . . Nicolae. [¶] . . . It remains there is no evidence to show how the Surgery Center exceeded the scope of [Hirsch’s] consent when . . . Nicolae failed to use a fiberoptic intubation unless we find that . . . Nicolae is the ostensible agent of the Surgery Center, and that we cannot do, not on this record, and that’s my ruling on the battery cause of action.”

G. Jury Returned Defense Verdict

In November 2018, the jury returned a unanimous verdict. It determined none of the defendants were negligent in the medical care and treatment provided to Hirsch. The jury also determined Nicolae did not perform a medical procedure on Hirsch that was substantially different than the procedure to which she had given her consent. Because the jury found defendants were not liable, it did not reach the issues of causation or damages.

DISCUSSION

I. Standard of Review

We review rulings on motions for nonsuit de novo using the same standards governing the trial court. (Hernandezcueva v. E.F. Brady Co., Inc. (2015)

243 Cal.App.4th 249, 257.) “‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor.’ [Citation.] In determining the sufficiency of the evidence, the trial court must not weigh the evidence or consider the credibility of the witnesses. Instead, it must interpret all of the evidence most favorably to the plaintiff’s case and most strongly against the defendant, and must resolve all presumptions, inferences, conflicts, and doubts in favor of the plaintiff. If the plaintiff’s claim is not supported by substantial evidence, then the defendant is entitled to a judgment as a matter of law, justifying the nonsuit. [Citation.]” (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541.) We review evidentiary rulings for abuse of discretion. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.)

II. Analysis

Hirsch makes three main arguments on appeal. First, she states the trial court erred by granting Ruhland’s and the Surgery Center’s motions for nonsuit on the battery and negligence claims. Second, she asserts the court abused its discretion during trial by excluding witness testimony, much of it concerning causation and damages. Third, Hirsch contends the court erred because it excluded damages evidence of her net amount of disability benefits. In addition to the arguments raised on appeal, it is equally important to recognize what Hirsch does not challenge. Hirsch does not challenge the jury’s determination Nicolae was not liable for either battery or medical malpractice. Instead, she asserts the trial court erred by granting the motions for nonsuit in favor of Ruhland and the Surgery Center, even though their liability was based entirely upon Nicolae’s actions as a purported agent. Additionally, Hirsch’s other claims assert evidentiary abuse of discretion, largely related to testimony concerning causation and damages—issues the jury did not reach given its finding of no liability. Accordingly, we find no error and affirm the judgment.

A. Ruhland’s Motions for Nonsuit on Battery and Negligence Claims
B.
Hirsch argues the trial court erroneously granted Ruhland’s motions for nonsuit. On the nonsuit motion on the battery claim, Hirsch contends Ruhland exercised control over Nicolae and was vicariously liable for the alleged battery committed against Hirsch. As to the negligence cause of action, Hirsch argues Ruhland had an obligation to maintain Hirsch’s care because he brought her into the clinic. Hirsch failed to present any evidence Ruhland could be vicariously liable for Nicolae’s conduct, or that he breached the standard of care. The jury determined Nicolae did not commit a battery against Hirsch and did not violate the standard of care. Therefore, Ruhland could not be held liable for Hirsch’s alleged injuries and Hirsch suffered no prejudice. We find no error.

Civil Code section 2295 provides: “an agent is one who represents another, called the principal, in dealings with third persons.” Agency may be “either actual or ostensible.” (Civ. Code, § 2298.) Actual agency occurs “when the agent is really employed by the principal.” (Civ. Code, § 2299.) Ostensible agency is found where “the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300.) “The [principal’s] liability is wholly derived from the liability of the [agent]. The [principal] cannot be held vicariously liable unless the [agent] is found responsible.” [Citations.] (Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423.)

The complaint based all liability entirely on Nicolae’s acts or omissions. Ultimately, however, the jury determined Nicolae was not liable on either claim. Therefore, even if we presume Nicolae acted as Ruhland’s or the Surgery Center’s agent, Hirsch can show no prejudice from the denial of the motions for nonsuit because the jury imposed no liability. We analyze Hirsch’s arguments through this lens.

As to the battery cause of action, Hirsch asserts the following three grounds demonstrate Ruhland’s control over Nicolae’s anesthesia services: he assigned Nicolae to the procedure; he questioned Nicolae regarding her qualifications; and he instructed Nicolae to return to the recovery room to examine Hirsch. Hirsch contends Ruhland, in his role as medical director, was the ostensible agent of La Veta. She further asserts Nicolae was an agent of La Veta as a member of the anesthesia department, and by their agency relationship, Ruhland was liable for the alleged battery. We are not persuaded.

In order to successfully establish liability for medical battery against Ruhland, Hirsch needed to prove he “performed a medical procedure without [her] consent” or that Hirsch “consented to one medical procedure, but [defendants] performed a substantially different medical procedure, ” that Hirsch “was harmed” and that the defendants’ “conduct was a substantial factor in causing [Hirsch’s] harm.” (CACI No. 530A.) Hirsch provided no evidence showing Ruhland performed any medical procedure on her. On the contrary, Hirsch testified Ruhland promised only that the Surgery Center had the equipment to do fiberoptic intubations, and that he would find an anesthesiologist who could do that procedure. Ruhland never evaluated or examined Hirsch, was “never in the room” during Hirsch’s surgery, and he did not know “what transpired in the room.”

Furthermore, even accepting as true for the sake of argument Hirsch’s assertion Ruhland and Nicolae were agents of La Veta, it did not create an agency relationship between the two as individuals. Ruhland could only be found vicariously liable for Nicolae’s conduct if she was his personal agent because there was no evidence Ruhland employed Nicolae. (See Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 904.) Hirsch failed to present any evidence to establish such an agency relationship. There was no evidence Ruhland exercised control over Nicolae’s practice. In fact, Hirsch conceded there was no “evidence in the record that would support even an inference that

. . . Ruhland instructed . . . Nicolae [t]o not perform a fiberoptic intubation.” Therefore, even if Hirsch’s arguments are taken as true, they do not amount to control over Nicolae’s decision to utilize a rigid laryngoscope to intubate Hirsch instead of a fiberoptic scope. Ruhland could not be held liable for battery based upon Nicolae allegedly exceeding the bounds of Hirsch’s informed consent.

Furthermore, as explained above, even if Ruhland was found ostensibly liable for Nicolae’s conduct, he cannot be assigned liability. The jury determined Nicolae did not commit a battery or medical malpractice. Hirsch did not challenge the verdict in favor of Nicolae, which prevents a finding of vicariously liability on appeal. (See In re Saldana (1997) 57 Cal.App.4th 620, 625.) Because Nicolae was not found liable, we are at a loss as to how Ruhland could be determined liable based upon her actions. (Korens v. R. W. Zukin Corp. (1989) 212 Cal.App.3d 1054, 1062 [principal for whom agent allegedly acted could not be held liable for failure where agent was not liable].) In sum, the trial court did not err in granting Ruhland’s motion for nonsuit on the battery claim.

Hirsch next claims Ruhland’s motion for nonsuit on the negligence cause of action was made in error because Ruhland breached the standard of care by not responding to Hirsch’s bedside in the recovery room. However, “[b]ecause the standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of experts’ [citation], expert testimony is required to ‘prove or disprove that the defendant performed in accordance with the standard prevailing of care’ unless the negligence is obvious to a layperson. [Citation.]” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

Hirsch called one standard of care expert, Schares. Schares, however, offered no testimony that Ruhland breached the standard of care. Indeed, Hirsch conceded this point at trial, “Schares did not say [Ruhland] violated the standard of care.” Hirsch does not argue otherwise on appeal.

As the trial court noted, the only testimony from Schares regarding the standard of care was, “you cannot force a competent patient to do something against their will.” We, like the trial court, can discern no reasonable inference from this testimony that would implicate Ruhland under the medical malpractice cause of action. We find no error.

C. Surgery Center’s Motion for Nonsuit on Battery Claim
D.
In its motion for nonsuit on the battery cause of action, the Surgery Center claimed it was not directly or indirectly liable through the alleged batteries of its purported agents, Ruhland and Nicolae. Hirsch abandons her direct liability theory on appeal, arguing only that “[s]ufficient evidence of [Ruhland’s] role relating to . . . Hirsch’s injury . . . was admitted in evidence to mandate denial of all nonsuit motions.” Hirsch’s indirect theory of liability against the Surgery Center is that questions of fact remained concerning Ruhland’s liability for battery and negligence and that “Ruhland was the ostensible agent of [the Surgery Center].” As explained above, however, we find no error with the trial court’s grant of Ruhland’s motion for nonsuit on the battery claim. In sum, there was no evidence to establish a direct finding of liability against Ruhland for either battery or negligence. As such, there is no possible basis on which to find the Surgery Center indirectly liable for his conduct. The trial court did not err when it granted the Surgery Center’s motion for nonsuit on the battery claim.

C. Witness Testimony and Evidence at Trial

Hirsch also asserts the trial court abused its discretion by sustaining various defense objections to witness testimony during trial. She further contends the evidentiary rulings “effectively denied [Hirsch] a fair opportunity to prove her case.” The court did not abuse its discretion. We address Hirsch’s various evidentiary complaints in turn.

i. Expert Testimony

Hirsch first contends the court improperly excluded testimony from her expert witnesses, Schares, Dr. Harris Ronald Fisk, and Dr. Jeffery Schaeffer. She claims the court erroneously sustained hearsay objections to the portions of their testimony relying upon the content of her medical records. Hirsch maintains these rulings prevented the experts from offering their opinions. We disagree.

The trial court correctly recognized expert witnesses may testify to general background information and non case-specific facts, even if hearsay, so long as information was within their general knowledge in the field of expertise. (People v. Sanchez (2016) 63 Cal.4th 665, 676-677, 685-686 (Sanchez).) While experts have latitude to rely on such hearsay as it pertains to their “training and experience, . . . lectures, study of learned treatises, etc.[,]” expert testimony as to case-specific facts must be based upon admissible, non hearsay evidence. (Id. at p. 675.) Thus, “[w]hen any expert relates to the jury case specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.” (Id. at p. 686.)

Hirsch’s counsel questioned Schares whether he agreed with Hirsch’s own assessment she was difficult to intubate. Defense counsel objected on hearsay grounds, and the trial court sustained the objection. On appeal, Hirsch asserts Schares’s testimony fell within the business records exception to the hearsay rule and contends the evidentiary ruling prevented Schares from “identifying or explaining the foundation for his opinions.”

The trial court properly prevented Schares from testifying as to case specific hearsay, specifically out-of-court statements by other physicians. Assuming without deciding the court erred by not allowing the testimony about Hirsch’s medical records under the business records exception, Hirsch suffered no prejudice because Schares ultimately opined he would have treated Hirsch as a patient with a difficult intubation.

Hirsch also contends the trial court abused its discretion by sustaining objections to the testimony of Fisk and Schaeffer. Fisk’s testimony concerned causation between the causes of action and Hirsch’s claimed injuries. Specifically, the court sustained objections to the following: Fisk’s recitation of findings from radiology studies performed by others and testimony regarding another neurologist’s headache protocols. Schaeffer attempted to testify regarding Hirsch’s scores on standardized testing performed by other physicians, also relevant to causation and damages.

All of Hirsch’s examples of improper evidentiary rulings as to Fisk and Schaeffer involve the Sanchez principles. (Sanchez, supra, 63 Cal.4th at pp. 676-677, 685-686.) The experts were allowed to testify as to what they relied upon in reaching their opinions, but could not recite the substance of the underlying sources. (Ibid.) The court did not abuse its discretion by excluding this evidence. Furthermore, because the jury found no liability and never reached the issues of causation or damages, the exclusion of this testimony as to alleged injuries did not prejudice Hirsch.

ii. Natland’s Testimony

Next, Hirsch asserts the trial court abused its discretion by sustaining hearsay objections to portions of Natland’s testimony. The court sustained hearsay objections to Natland’s testimony regarding Hirsch’s first words in the recovery room and whether Hirsch informed the recovery room nurse she was in pain. Hirsch asserts Natland’s testimony was admissible as a spontaneous statement exception of the hearsay rule. (Evid. Code, § 1240.)

For the spontaneous statement exception to apply, “‘(1) There must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.)

Here, counsel asked Natland, “[w]hat was the first thing . . . Hirsch said in your presence in that recovery area?” The trial court struck the response as hearsay. There is no evidence in the record or offer of proof as to what spontaneous statement Natland overheard, so as to apply an exception.

Hirsch also contends Natland was improperly prevented from testifying as to whether she heard Hirsch report pain to the recovery nurse. Hirsch asserts this testimony was improperly excluded because it was evidence of her then existing mental or physical state, and it was a prior consistent statement. We disagree.

Evidence Code section 1250 provides an exception to the hearsay rule for statements of declarant’s then existing mental or physical state. However, the state of mind exception “does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” (Evid. Code, § 1250, subd. (b).) Hirsch initially argued the alleged statement overheard by Natland was offered to “explain the pain being experienced by . . . Hirsch.” Hirsch later conceded, however, the statement was being offered to show the pain was reported to the nurse but not charted. Thus, the state of mind exception was inapplicable because it was not being offered to prove Hirsch’s mental or physical state.

Hirsch also asserts Natland’s testimony was admissible as a prior consistent statement under Evidence Code section 791. That section, however, only applies after evidence of an inconsistent statement or after a charge the testimony at the hearing is recently fabricated or influenced. Because there was no inconsistent statement regarding Hirsch’s pain following her surgery and defendants made no claims of fabrication, Evidence Code section 791 was inapplicable.

iii. Hirsch’s Testimony

Hirsch contends the trial court erroneously struck her testimony Dr. Jerald Burke sent her to voice therapy because she “had a traumatic intubation.” Hirsch asserts her testimony fell within the state of mind exception to the hearsay rule. (Evid. Code, § 1250.) That provision does not apply here. The statement related to Burke’s state of mind, not Hirsch’s. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389 [“If offered to prove the declarant’s state of mind, the statement may be introduced without limitation, subject only to [Evid Code, §] 352”].) Here, Burke was the declarant, and Hirsch attempted to testify as to Burke’s state of mind. This was impermissible double hearsay. We find no error with the court’s exclusion of this testimony.

Hirsch also argues the trial court erred by striking her answers to the following questions: whether she had been told in January 2014 she had a brain injury; whether a nurse told Hirsch she was dragging her leg; and what Camilon allegedly told her about her injuries. Because each of the questions elicited a hearsay response, the trial court did not err by sustaining the objections. Instead, Hirsch was allowed to answer the questions by testifying as to her own perceptions and beliefs. For example, she testified: in January 2014, she did not believe she had a brain injury; she perceived she was dragging her leg; and she testified as to the prescription Camilon wrote for her. This was proper.

Finally, Hirsch asserts she was “not allowed to testify that . . . Ruhland appeared to be a supervisor at [the Surgery Center].” The trial court sustained the defense’s objection to that question, not on hearsay grounds but on vagueness grounds. Ultimately, however, Hirsch testified broadly concerning her interactions with and perceptions of Ruhland at the Surgery Center. The court did not err.

iv. Dr. Bradley Jabour and Dr. Gary Bellack

Hirsch first argues trial court improperly prevented her from presenting rebuttal evidence from Jabour, a radiologist specialist. She contends Jabour’s testimony was necessary to refute testimony from the defense’s expert, Woo. “The admission of evidence in rebuttal is a matter left to the sound discretion of the trial court. [Citation.] The court’s decision in this regard will not be disturbed on appeal in the absence of ‘palpable abuse.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 653.) We find no such abuse.

Jabour was not listed on Hirsch’s witness disclosure, nor the joint witness list. He was never designated as an expert witness and defendants were deprived of an opportunity to conduct discovery to prepare for his trial testimony. The trial court did not abuse its broad discretion by precluding rebuttal expert testimony on a narrow issue.

Similarly, Hirsch contests the trial court’s exclusion of Bellack’s testimony. Bellack was going to testify during Hirsch’s case-in-chief as a treating physician who performed an audiology test on Hirsch. Because Hirsch did not disclose Bellack during discovery, however, the exclusion of his testimony was not an abuse of discretion.

v. Closing Arguments

Hirsch contends the trial court committed reversible error by not allowing her sufficient time in closing argument. Before closing arguments, the court informed each side that it would have one hour for closing arguments. Hirsch did not object to this allotment of time and has therefore forfeited the issue. (See People v. Mejia (2012)

211 Cal.App.4th 586, 634, fn 8.)

D. Testimony Regarding Hirsch’s Use of Disability Benefits

Hirsch contends the trial court erred by excluding evidence of the net amount of disability benefits she received to rebut defense evidence of the gross amount she received. Hirsch argues the trial court abused its discretion by excluding evidence a portion of her disability payments were used to pay attorney fees. As discussed above, however, because the jury never addressed the issue of damages, the admissibility of insurance offsets was never at issue. Because this issue was not determined by the jury, it is not properly raised on appeal.

 

DISPOSITION

The judgment is affirmed. Respondents shall be awarded costs on appeal.

O’LEARY, P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.