Filed 11/21/19 Kim v. Regents of the University of Cal. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

SOYEUN KIM,

Plaintiff and Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.

A155073

(City & County of San Francisco

Super. Ct. No. CGC-15-548394)

In this medical malpractice case, plaintiff Soyeun Kim, by and through her guardian ad litem, appeals from a judgment and post-judgment orders after a jury found that defendant The Regents of the University of California was not negligent in providing medical care and treatment to plaintiff. The sole contention on appeal is that the trial court abused its discretion in denying plaintiff’s request for her medical expert to testify at trial by live videoconference. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In early April 2012, plaintiff, then six years old, broke her right arm while attempting a cartwheel. At California Pacific Medical Center, one of defendant’s physicians, Dr. Mohammad Diab, performed surgery on plaintiff’s arm. During the surgery, plaintiff lost circulation to her hand, and Dr. Diab called a vascular surgical team to assist. The vascular surgeons diagnosed plaintiff with a temporary spasm and decided not to surgically explore the vessel. The doctors did not think plaintiff had “compartment syndrome”—a circulatory injury to a self-contained collection of muscle within a limb that, if untreated, can lead to muscle death.

At a follow-up appointment on April 11, 2012, Dr. Diab examined plaintiff and found she could not move her fingers and had diminished sensation in her hand, which raised concerns for either compartment syndrome or an “ischemic injury”—an injury due to a lack of blood flow through the brachial artery. Dr. Diab thought it would be atypical for plaintiff to have compartment syndrome because she showed none of the classic signs, and he explained to plaintiff’s parents that children may have a subclinical compartment syndrome, meaning it cannot be diagnosed based on normal measures. Dr. Diab concluded that if plaintiff had compartment syndrome, it was not acute and had come and gone, and that therefore, any benefits of a “fasciotomy”—a surgical procedure to release pressure—would be outweighed by the risk of a limb-threatening infection. After Dr. Diab advised it was better to observe than perform immediate surgery, plaintiff’s mother declined surgery on April 11, 2012.

Two days later, plaintiff was still experiencing difficulty moving and feeling her hand, and her mother again called Dr. Diab’s clinic. Plaintiff was seen by Dr. Lisa Lattanza, who was unable to obtain a pulse and observed plaintiff’s inability to actively flex her fingers or thumb. Dr. Lattanza recommended that plaintiff have another surgery. That day, Dr. Lattanza and Dr. Charles Lee performed the surgery and discovered that plaintiff’s brachial artery was kinked. Dr. Lattanza cleaned out the necrotic muscle, and Dr. Lee performed arterial repair.

The Litigation

In 2015, plaintiff, by and through her guardian ad litem, sued defendant for medical negligence. Plaintiff alleged that defendant’s physician, Dr. Diab, had deviated from the standard of care in failing to recommend compartment pressure studies and/or an arteriogram, in failing to diagnose compartment syndrome, and in failing to recommend emergency surgery on April 11, 2012.

Plaintiff retained pediatric orthopedist Dr. Stuart Polisner as her standard of care expert. In September 2017, Dr. Polisner was deposed in his home state of New York. During the videotaped deposition, Dr. Polisner indicated that he had read the declaration of defendant’s standard of care expert, Dr. Nina Lightdale-Miric and that he disagreed with Dr. Lightdale-Miric in several regards. He testified in relevant part that on April 11, 2012, Dr. Diab did not meet the standard of care when he recommended observation over emergency surgery. According to Dr. Polisner, Dr. Diab should have performed a compartment pressure test known as a Stryker exam to rule out compartment syndrome. While acknowledging “it’s gonna be a gray zone in this case, because some doctors at that point probably would have done [a compartment pressure test] and some doctors wouldn’t have done it,” Dr. Polisner testified that he “would have done compartment pressure studies” and “would have slept better that night.” When asked if he was speaking only for himself, Dr. Polisner clarified, “I’m trying to reflect what I think the average reasonable or competent pediatric orthopedic surgeon would have done in that situation.”

Plaintiff’s Motion in Limine

Prior to trial, plaintiff filed a motion in limine to permit Dr. Polisner to testify at trial by live videoconference. According to plaintiff, Dr. Polisner was unable to appear at trial due to several medical conditions. Plaintiff proposed that a live video feed would “be set up by plaintiff’s counsel and a trial technician,” during which defendant would be able to cross-examine Dr. Polisner in real time. In a supporting declaration, plaintiff’s counsel attached a doctor’s note dated October 4, 2017, discussing Dr. Polisner’s medical conditions and advising him not to fly. Defendant did not expressly oppose plaintiff’s request but raised concerns about “potential logistical problems with a live video-feed and the possibility of resulting delays in the trial of this matter.” Defendant further requested that any live video feed provide defense counsel “the ability to cross-examine Dr. Polisner and contemporaneously show exhibits and/or videotaped prior deposition testimony on a separate screen that is easily seen by jurors and by Dr. Polisner.”

At the hearing on the motion, the trial court found that plaintiff had failed to identify any authority empowering the court to permit trial testimony by videoconference. The court observed that where a party’s expert witness cannot testify at trial, Code of Civil Procedure sections 2025.220, subdivision (a)(6), and 2025.620, subdivision (c)(2), allow the party to use video-recorded deposition testimony in lieu of live testimony. The court also raised concerns about “the lateness of this request” given that six months had elapsed since plaintiff’s discovery of Dr. Polisner’s inability to fly back in early October 2017, and that plaintiff could have sought a court order and designated another expert. The trial court raised further concerns about the “enormous prejudice to the defense” and “enormous logistics” to overcome in showing Dr. Polisner exhibits on cross-examination.

Attempting to ease the court’s logistical concerns, plaintiff’s counsel stated that a technician with significant experience setting up live video testimony would be present at trial, and that dual screens would be available so that defense counsel could cross-examine Dr. Polisner and show him documents. As for the option of retaining a new expert, plaintiff’s counsel argued that according to Dr. Polisner, there was no doctor in the country with the credentials and the willingness to testify in a case of this kind.

The trial court ultimately denied the motion, concluding plaintiff had not made an adequate showing to allow Dr. Polisner to testify by live video feed. The court found the proposal to be “a very novel and unusual departure from the Code of Civil Procedure requirements and the Evidence Code requirements, and the Court does not find justification—based on the showing in the papers that are being presented, does not find justification to authorize this video feed. And I do find that there could be great prejudice to the opposing party. . . .”

The trial court then considered, sua sponte, whether to allow plaintiff to take a further video deposition of Dr. Polisner in order to ask questions that may not have been covered at his deposition. The court ordered the parties to designate excerpts of the deposition transcript that they wished to use, along with objections to the other side’s designations. After the midday recess, the court indicated that it had reviewed the transcript of Dr. Polisner’s deposition and concluded that a further video deposition was not required because plaintiff’s counsel “did a very thorough examination . . . of the doctor’s opinions, and asked him a lot of questions covering all of his opinions. . . .” The court found that Dr. Polisner “testified very extensively not only to [defense counsel’s] questions, but to all of [plaintiff’s counsel’s] questions . . . about all the ways that he felt that Dr. Diab breached the standard of care, and then he—you asked him was there anything else, basically, that he wanted to add, and he did add quite a lengthy answer.” Plaintiff’s counsel responded she was “quite satisfied” with the deposition and was “okay with not redeposing him.” The trial court later overruled all objections to the parties’ designated excerpts of the deposition transcript.

Trial and Appeal

At trial, the designated portions of the video of Dr. Polisner’s deposition were played to the jury. Dr. Lee testified that plaintiff suffered from acute compartment syndrome among other issues.

Drs. Diab, Lightdale-Miric, and Lattanza testified for the defense that Dr. Diab was not negligent in recommending observation rather than emergency surgery on April 11, 2012. Dr. Diab testified that plaintiff did not require immediate vascular surgery because her arm had a pulse and was well-perfused, and that the studies which Dr. Polisner said were necessary (i.e., Stryker exam) were not indicated. Dr. Lightdale-Miric testified that the care plaintiff received from Dr. Diab on April 11, 2012, was appropriate and reasonable, including the decision not to perform immediate surgery, since by that time, whatever loss in function existed had already occurred. She further agreed with Dr. Diab that a Stryker exam and/or arteriogram were not indicated or necessary to meet the standard of care.

The jury presented several questions for each of these witnesses. At one point, plaintiff’s counsel requested that the trial court permit Dr. Polisner to answer any questions the jury may have for him by live video or telephone, but the trial court refused.

After deliberations, the jury rendered a special verdict finding that Dr. Diab was not negligent in providing care and treatment to plaintiff on April 11, 2012. Judgment was entered in favor of defendant.

Plaintiff moved for a new trial and judgment notwithstanding the verdict. In her motion for new trial, plaintiff argued that Dr. Polisner was disabled within the meaning of California Rules of Court, rule 1.100 (rule 1.100), and the trial court impermissibly denied him a reasonable accommodation of testifying by live video feed. The trial court denied both motions.

Plaintiff timely appealed from the judgment and the orders denying her post-trial motions.

DISCUSSION

The sole issue presented in this appeal is whether the trial court prejudicially abused its discretion in denying plaintiff’s request to allow Dr. Polisner to testify at trial through live videoconferencing.

Plaintiff argues that live video technology is advancing rapidly and has become widely accepted in civil cases and throughout society, and that the trial court had the inherent power under Code of Civil Procedure section 187 to allow such testimony. Plaintiff further argues the trial court abused its discretion in denying Dr. Polisner a reasonable accommodation for his disabilities under the ADA and rule 1.100. Plaintiff contends the court’s decision prejudiced her, as this is a medical malpractice case where the testimony of dueling experts is critical, and the jurors in this case were very active and would likely have asked Dr. Polisner questions that would have helped with their understanding of his testimony. Plaintiff argues the video of Dr. Polisner’s deposition was an inadequate substitute for live testimony because the deposition was taken by the defense, and Dr. Polisner had no opportunity to clarify any purported ambiguities in his testimony or to respond to the trial testimony of the defense witnesses.

There is no express statutory grant of authority permitting a witness in a civil trial to testify by live videoconference. Although we acknowledge that such testimony is permitted in other contexts (see fn. 3, ante) and is within the permissible scope of the trial court’s inherent power to control the course of litigation before it (Code Civ. Proc., § 187), plaintiff has not established an abuse of discretion in the instant case.

Where discretionary power is expressly or inherently vested in the trial court, we will not disturb the exercise of that discretion except on a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.)

We find nothing arbitrary, capricious, or absurd in the trial court’s decision here. As the record reflects, the decision was based in part on the lateness of plaintiff’s request, which was a valid consideration. The record shows that plaintiff’s counsel learned of Dr. Polisner’s condition in October 2017, but it appears counsel did not attempt to retain another expert in the six months between then and the continued trial date. In this regard, plaintiff’s sweeping contention that Dr. Polisner was the only qualified expert in the country willing and able to testify for plaintiff was simply not supported by any facts in the record.

The trial court’s decision was also based on valid concerns about logistics and undue delay of trial. The motion papers and statements of plaintiff’s counsel at the hearing did little to address these concerns. The papers contained no detailed facts regarding the technology that plaintiff’s counsel proposed to use to ensure reliable and efficient connectivity, adequate audio and video quality, and the ability for the witness to contemporaneously and accurately view exhibits. Plaintiff argues the trial court did not inquire how the technology would work or allow a demonstration, but it remained plaintiff’s burden as the moving party to affirmatively provide such details in her papers.

Finally, we find no merit in plaintiff’s contention that the trial court abused its discretion by denying Dr. Polisner a reasonable accommodation. Dr. Polisner did not make an accommodation request under rule 1.100, and plaintiff cites no authority that a party’s motion in limine—particularly one which did not even mention the ADA or rule 1.100—constitutes a request to the court for accommodation of a witness’s disability. Thus, we see no reason why the trial court should have viewed the motion as anything other than a general evidentiary request unrelated to the requirements of the ADA and rule 1.100. Plaintiff cited rule 1.100 for the first time in her new trial motion, but by then the request was too late. (Rule 1.100(c)(3) [requests must be made as far in advance as possible and no fewer than 5 court days before requested implementation date].) And because plaintiff neglected to make a timely request under rule 1.100, she failed to show an irregularity in the proceedings or error in law to justify a new trial. (Code Civ. Proc., § 657, subds. (1), (7).)

On this record, we conclude the trial court did not abuse its discretion in determining that plaintiff failed to adequately demonstrate justification for the proposed expert testimony by live video feed. Moreover, even if we were to assume error, plaintiff has not shown a miscarriage of justice, i.e., a reasonable probability that she would have obtained a more favorable result had the trial court allowed Dr. Polisner to testify by live videoconference. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480.)

After the trial court denied plaintiff’s motion, it specifically considered whether to allow plaintiff to take a further video deposition of Dr. Polisner in order to ask questions that may not have been covered at his deposition. After hearing from both sides, the court determined to its satisfaction, as well as that of plaintiff’s counsel, that a further video deposition was not necessary. The trial court then reviewed the parties’ proposed deposition excerpts and objections before playing the video excerpts to the jury. Although the deposition was taken by the defense, plaintiff’s counsel acknowledged that she was able to ask Dr. Polisner questions and that she addressed areas “[defense counsel] did not cover, just to have a more thorough deposition.” Thus, the jury was presented with relevant portions of Dr. Polisner’s deposition testimony regarding all areas for which he was designated, and which plaintiff’s counsel had previously deemed were satisfactory and complete.

Plaintiff argues she was prejudiced because there was no opportunity for Dr. Polisner to respond to the testimony of other witnesses. But plaintiff does not point to any particular trial testimony that required a response by Dr. Polisner. Perhaps the most critical defense testimony in this regard was that of Dr. Lightdale-Miric, but Dr. Polisner addressed each of Dr. Lightdale-Miric’s opinions during his deposition, and plaintiff identifies no portion of Dr. Lightdale-Miric’s trial testimony that was materially different from the opinions she expressed in her declaration.

Plaintiff further contends that Dr. Polisner could have clarified perceived ambiguities in his deposition testimony that defendant repeatedly attacked at trial. The main example cited by plaintiff is Dr. Polisner’s testimony that plaintiff had “no function” in her forearm or “did not have all of her function back” on April 11, 2012. True, the defense seized on this testimony as a concession that plaintiff’s compartment syndrome had completed by April 11, 2012, which, the defense argued, supported Dr. Diab’s decision not to perform surgery that day. We are not persuaded, however, that plaintiff was prejudiced, because the record shows that Dr. Polisner adequately clarified this testimony. During his deposition, Dr. Polisner testified that although plaintiff had “no function” in her forearm, it may have been because “the muscles were dying gradually, and the muscles that were left weren’t able to pull through the dying muscle in order to contract the fingers. [¶] . . . [S]he still had some viable muscle in that forearm. . . .” During closing arguments, plaintiff’s counsel took particular pains to highlight this clarifying testimony to the jury. “Regarding the no function Dr. Polisner mentioned existed—because I know they’re going to bring this up also – on April 11th, he did not mean her arm was dead. Right? We know that. We know she didn’t have a dead arm, and he clarified that. Right? [¶]. . . . [¶] . . . He’s saying the reason she can’t move is because the muscles that were left weren’t able to pull through the dying muscle to contract the fingers.” Thus, the jury already knew that Dr. Polisner’s “no function” comments were not intended to suggest there was a complete compartment syndrome.

The only other example of seemingly ambiguous testimony repeatedly attacked by the defense was Dr. Polisner’s statement that a Stryker exam is in a “gray zone” because some doctors would not have performed it. But this comment, too, was clarified by Dr. Polisner during his deposition. As recounted above, Dr. Polisner clarified his opinion that a competent pediatric orthopedic surgeon in Dr. Diab’s position would have performed a Stryker exam. Thus, the jury heard Dr. Polisner testify that his “gray zone” comment was not intended to suggest that a doctor who fails to perform a Stryker exam meets the standard of care. Because any further clarification by Dr. Polisner by live video or telephone would have been cumulative to the clarifying comments already made during his deposition, we do not see a reasonable probability that such testimony would have led to a more favorable result for plaintiff.

In sum, we conclude the trial court did not abuse its discretion, prejudicially or otherwise, in refusing to allow Dr. Polisner to testify by live videoconferencing.

DISPOSITION

The judgment and post-judgment orders denying plaintiff’s motion for new trial and for judgment notwithstanding the verdict are affirmed. Defendant shall recover its costs.

 

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Goode, J.*