California Court of Appeal Jan 29, 2016 No. D067252MUnpublished
Filed 1/29/16 Enholm v. Cohen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TANYA ENHOLM, D067252
Plaintiff and Appellant, (Super. Ct. No. 37-2013-00057742-CU-MM-CTL) v. ORDER MODIFYING OPINION STEVEN R. COHEN et al., AND DENYING REHEARING
Defendants and Respondents. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on January 12, 2016 be modified as
follows: On page six, in the second sentence, delete the words "fat cell" and replace them
with the words "cell-enriched fat" so the sentence reads:
Enholm asked Cohen whether the cell-enriched fat injections were related to her cancer.
There is no change in the judgment.
Appellant's petition for rehearing is denied.
NARES, Acting P. J.
Copies to: All parties
Filed 1/12/16 Enholm v. Cohen CA4/1 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
v. (Super. Ct. No. 37-2013-00057742-CU-MM-CTL) STEVEN R. COHEN et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Richard E.
L. Strauss, Judge. Affirmed.
Tanya Enholm, in pro. per., for Plaintiff and Appellant.
Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson, Clark R. Hudson,
David P. Burke and Jonathan R. Ehtessabian for Defendant and Respondent.
Tanya Enholm employed a plastic surgeon, Steven R. Cohen, M.D., to replace
breast implants she received in 1978. The procedure also involved injecting fat cells in
her chest wall to produce softer breasts. Five months after surgery, Enholm was
diagnosed with uterine cancer. She attributes her cancer to the fat cell injections. She
sued Cohen, alleging he failed to obtain her informed consent, committed fraud, and the
fat cell injections violated Food and Drug Administration (FDA) regulations.
Cohen moved for summary judgment, supported in part by a declaration from a
plastic surgeon who stated (1) Cohen complied with the standard of care in obtaining
Enholm's informed consent; (2) the procedure, which involved harvesting fat cells from
one part of Enholm's body and injecting them in another, was not regulated by the FDA;
and (3) it is medically impossible for the fat cell injections to have caused Enholm's
uterine cancer.
Enholm submitted no opposing expert declaration. At the hearing, her lawyer
conceded Enholm sustained no physical injury and "feels better now than she did before"
surgery.
After the court granted summary judgment, Enholm fired her lawyer, began
representing herself, and filed a motion for new trial. After the trial court denied her
motion for new trial, she filed this appeal in propria persona.
We affirm the judgment. Enholm has not designated an adequate record to
demonstrate error. The trial court did not abuse its discretion in denying her motion for
new trial.
FACTUAL AND PROCEDURAL BACKGROUND
A. Surgery Consultation
In approximately 1978, Enholm had a bilateral mastectomy for polycystic breast
disease, followed by reconstructive surgery with breast implants. Approximately 34
years later, Enholm consulted with Cohen, a plastic surgeon, because of deformities in
2
her breasts and related pain. She told Cohen she wanted larger, softer breasts. After
discussing alternatives with Cohen, Enholm agreed on a plan to replace her existing
implants and to soften her breasts with conventional fat injections.
A few days later, Enholm again met with Cohen. She was interested in having a
different fat transfer procedure, called cell-enhanced fat transfer (CEFT).1
CEFT is an experimental procedure that involves removing fat by liposuction from
one area of the patient's body and reintroducing the fat into the patient's breasts. Cohen's
expert explained that in CEFT, a device "like a centrifuge" is used to "clean and prepare
the fat. Using a special enzyme, the device separates" the body's "natural regenerative
cells (blood vessel cells, stem cells) that are within [the patient's] own fat and then
concentrates them." These "cells are then mixed back" into a separate quantity of the
patient's fat that was set aside and "is reimplanted via injection into the breasts. The
addition and mixing of these concentrated cells to the fat is thought to allow for a better
blood supply and more successful survival of the transferred fat."
1 Without objection from Enholm, Cohen's attorneys lodged with this Court a binder containing documentary evidence they lodged in the trial court. Cohen's lawyers should have instead complied with California Rules of Court, rule 8.122(a)(2) [respondent's counter-designation] and (a)(3) [designating exhibits for copying into clerk's transcript] or alternatively, with rule 8.155 [augmenting the record] or rule 8.224 [transmitting exhibits]. The "Notice of Lodgment" submitted by Cohen on appeal does not comply with any of these rules. 3
B. Informed Consent Documents
Cohen's clinic note for January 12, 2012, states he discussed the "risks, benefits
and alternatives" of CEFT with Enholm. The note also states:
"I have explained this is a nonlabeled use. I have explained to her any implications regarding breast cancer recurrence, etc. I have given her a paper regarding autogenous fat transfer to the breast and what we do know at the present time. . . . [¶] In addition, she might want to tweak her face with a little mid face lift and use some of the cell-enriched fat to the cheek area and around the face. I have discussed this with her as well."
On January 30, 2012, Enholm signed an "Informed Consent Bilateral Breast
Reconstruction with Cell Enriched Autologous Fat Transfer and CEFT to Face." This
document states in uppercase letters, "OFF-LABEL USE." The form explains nine "risks
of breast reconstruction surgery" and also discusses "alternative treatment."
On February 1, 2012, Enholm met again with Cohen, "electing to proceed with
CEFT on the breast augmentations as well as her cheeks." Cohen's clinic note states
Enholm understood the experimental nature of the CEFT study. She initialed and signed
a separate "Informed Consent—Bilateral breast reconstruction with implant exchange
using silicone implants . . . ." This document includes "general information" about the
surgery and a four-page discussion of inherent risks.
On February 1, 2012, Enholm signed a separate six-page document entitled
"Informed Consent Form"—"Fat Grafting: Patient and Physician Satisfaction Study."
The document states, "You are being asked to participate in this research study because
you will receive a fat grafting procedure performed by Dr. Cohen. Your participation is
voluntary. Please read this consent form and ask the researcher any questions you may
4
have about the study." The document explains, "This study will . . . enable us to
determine if the addition of your own regenerative cells which are found in your fat and
then added back to your fat for grafting is better than conventional fat grafting . . . ."
Enholm also signed a separate document entitled "Consent for Surgery/Procedure
or Treatment," authorizing Cohen to perform "[b]ilateral breast reconstruction with cell
enriched autologous fat transfer and CEFT to face." Enholm acknowledged having
received information on "[i]nformed [c]onsent for bilateral breast reconstruction with cell
enriched autologous fat transfer and CEFT to face." Enholm checked the box stating, "I
have been asked if I want a more detailed explanation, but I am satisfied with the
explanation, and do not want more information."
C. Surgery
On February 12, 2012, Cohen performed surgery. His operative note states:
"This is a woman, who has bilateral mild capsular contractures, worse on the left than the right side, with some discomfort in the left lateral breast region. . . . [T]he patient desires to have these removed for further reconstructive purposes and to eliminate some of the capsular contraction . . . . In addition, she has elected after a very thorough informed consent, to use cell-enriched fat transfer both to the regional chest wall around the breasts, as well as to the face. The patient understands the risks, benefits, alternatives, and limitations of treatment, and wished to proceed."
D. Postoperative Care
The next day, Cohen examined Enholm and found her to be bruised, "as
expected," but "breasts look terrific" and face, although swollen "looks great."
5
In July 2012 Enholm informed Cohen she had been diagnosed with uterine cancer.
Enholm asked Cohen whether the fat cell injections were related to her cancer. He
replied there were no such reports in 6,000 patients.
E. Billing Code Error
Meanwhile, Enholm discovered Cohen's office had erroneously billed her health
insurer for the reconstructive surgery using an insurance code for breast cancer. Once
notified of the error, Cohen's office contacted the insurer to correct the error. The
insurance company corrected its records in October 2012.
F. Enholm Sues Cohen, Faces Plus and Cytori Pharmaceuticals
Enholm sued Cohen, Faces Plus (Cohen's medical corporation) (collectively,
Cohen), and Cytori Pharmaceuticals, Inc. (Cytori).2 She alleged CEFT involves creating
a "new 'pharmaceutical'" that violates FDA regulations. Because Cohen did not disclose
these facts to her, she alleged he performed surgery without her informed consent. She
sued Cohen for medical malpractice, fraud (based on Cohen's representations the
procedure was safe and FDA approved as an off-label use), and libel (based on telling her
insurer she had breast cancer).
Against Cytori, Enholm alleged Cytori manufactured "certain drugs, tissue
extraction equipment and other products" used in her surgery. She alleged Cytori's
product was "defective," and she sued Cytori for battery, product liability, and fraud. In
2 Enholm's complaint alleges Faces Plus "is owned and operated by Defendant Steven R. Cohen." Enholm did not allege any independent basis of liability against Faces Plus. 6
June 2014 Enholm filed a second amended complaint, adding details but containing
essentially the same charging allegations.
G. Cohen's Motion for Summary Judgment
In July 2014 Cohen and Faces Plus moved for summary judgment. The motion
was supported by a declaration from Joel Aronowitz, M.D., and excerpts from Enholm's
deposition.
Aronowitz is board certified in plastic surgery. He is the medical director of the
stem cell center at Cedars Sinai Medical Center. He has written papers on and is "very
familiar" with fat transfer procedures "like the one performed in this case." Aronowitz
reviewed Enholm's medical records, deposition, and discovery responses.
Aronowitz stated "Cohen's pre-operative care, consent discussions, and
information provided to the patient on the CEFT procedure and study were at all times
within the standard of care." He explained CEFT "did not add anything to the patient's
body that didn't already exist. All of the material injected into the patient's face and
breast was exclusively her own adipose tissue. . . . None of these cells
were . . . artificially modified in the CEFT process. All re-injected cells were the same,
unmodified cells that were present in Ms. Enholm's body to begin with." Aronowitz
states the "Cytori machine simply removes other types of cells present in the patient's
adipose tissue . . . so the re-injected fat contains a higher concentration of stem cells."
Aronowitz's declaration states CEFT did not cause Enholm's cancer. He explained
"there is no biological mechanism by which stem cells could reasonably migrate from the
breast/face to the ovaries."
7
Aronowitz also stated Enholm's surgery did not violate FDA regulations. "This
was a surgical procedure that did not involve any new drug or implant. The FDA does
not approve surgical procedures or regulate the practice of medicine."
With respect to the billing code error, Aronowitz stated Cohen's staff "revised
insurance billing information in a timely fashion" after learning of the error. According
to Aronowitz, "[t]hese types of billing errors do occur in common practice. When such
errors do occur, the standard of care requires reasonable steps to be taken to correct the
errors. In this case, Dr. Cohen directed the billing staff to make corrections in a timely
and appropriate fashion."
Cohen's lawyers also lodged excerpts from Enholm's deposition, where Enholm
admitted (1) she had no complaints about the surgical results, (2) no physician had
attributed her ovarian cancer to the surgery, and (3) she sustained no physical injury from
the surgery:
"Q: You don't have any complaints about the aesthetics, and the pain that you were previously experiencing in your left breast has been relieved by the procedure, correct?
"A: Correct. [¶] . . .
"Q: Have any of your healthcare providers who have treated you for the fallopian tube cancer in any way attributed the development of that cancer to Dr. Cohen's surgery . . . .
"A: No, not that I'm aware. [¶] . . .
"Q: [H]ave you been told by anybody [other than your attorney] that the stem cell fat transfer procedure performed by Dr. Cohen has caused any type of physical injury to you?" [¶] . . .
"A: No."
8
H. Enholm's Opposition
Enholm did not submit any expert declaration in opposition. Her attorney's notice
of lodgment states he lodged 10 documents, including declarations, deposition excerpts,
an FDA "decision" and "warning letter." However, none of these exhibits is in the clerk's
transcript or otherwise before us.
Enholm's attorney also responded to Cohen's separate statement of undisputed
material facts by admitting the following as undisputed:
"No healthcare providers have ever told [Enholm] she is going to require any future medical care stemming from Dr. Cohen's treatment."
"Cell enriched fat transfer ('CEFT') to Ms. Enholm's breasts and face did not cause or contribute to the development of ovarian cancer. Changing the location of a patient's adipose stem cells would not induce, or enhance, the formation of a cancer somewhere else in the body."
"Plaintiff has been given a clean bill of health by her UCSD oncologists following treatment for her fallopian tube cancer."
"Plaintiff testified she has no aesthetic complaints following Dr. Cohen's surgery, and his surgery successfully alleviated the pain she has been experiencing due to contractures from her prior implants."
I. The Hearing
At the hearing, Enholm's attorney explained "this is not a traditional or, rather,
common medical malpractice action . . . . It's primarily one for fraud, the allegation
being that Dr. Cohen performed a procedure on my client knowingly using a non-FDA
approved device and a non-FDA approved procedure, a drug, according to the FDA, and
without her knowledge and consent." However, when questioned by the trial court,
9
counsel conceded Enholm sustained no physical injuries from surgery. In fact, she felt
better afterwards:
"The Court: What's the damage?
"A: The damage is she had a surgery that she would not have otherwise undergone, which is indicated in her declaration.
"The Court: She's not complaining about the effects of it.
"A: That's correct, Your Honor. . . .
"The Court: What's the damage?
"A: Having the surgery, Your Honor. [¶] . . .
"The Court: And she feels better now than she did before?
"A: Yes, Your Honor."
J. Summary Judgment
The court granted summary judgment. The court determined Enholm's evidence
was "insufficient and/or inadmissible to establish that the procedure, device, or substance
utilized by Defendants, in the manner used, were illegal." The court also found "there is
no evidence to support that Plaintiff suffered injury/damages as a result of Defendants'
conduct."
The court determined there was no evidence to support a triable issue "with
respect to the intent/causation elements" on fraud, "which Plaintiff failed to address.
Additionally, Plaintiff has submitted no evidence to support that Defendants acted with
malice as it concerns the libel claim . . . ."
10
K. Cytori Settlement
Meanwhile, Enholm and Cytori settled. Enholm voluntarily dismissed Cytori with
prejudice. In August 2015 this Court dismissed Enholm's appeal as to Cytori in light of
the settlement agreement and subsequent voluntary dismissal.3
After the trial court denied Enholm's motion for new trial, Enholm timely filed a
notice of appeal from the judgment.
DISCUSSION
I. THE TRIAL COURT CORRECTLY ENTERED SUMMARY JUDGMENT
A. Standard of Review
"A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.
[Citation.] We review the trial court's decision de novo . . . ." (Merrill v. Navegar, Inc.
(2001) 26 Cal.4th 465, 476 (Merrill).)
"In the trial court, once a moving defendant has 'shown that one or more elements
of the cause of action, even if not separately pleaded, cannot be established,' the burden
shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the
plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but,
instead, shall set forth the specific facts showing that a triable issue of material fact exists
as to that cause of action . . . .'" (Merrill, supra, 26 Cal.4th at pp. 476–477.)
3 Because Enholm's appeal as to Cytori was dismissed, we ignore the arguments in Enholm's brief that her settlement was the result of undue influence, duress, and coercion, and a conspiracy among the defendants and her lawyer. 11
"The court must 'grant[ ]' the 'motion' 'if all the papers submitted show' that 'there
is no triable issue as to any material fact' [citation]—that is, there is no issue requiring a
trial as to any fact that is necessary under the pleadings and, ultimately, the law
[citations]—and that the 'moving party is entitled to a judgment as a matter of law'
[citation]. The moving party must 'support[ ]' the 'motion' with evidence including
'affidavits, declarations, admissions, answers to interrogatories, depositions, and matters
of which judicial notice' must or may 'be taken.' [Citation.] Likewise, any adverse party
may oppose the motion, and, 'where appropriate,' must present evidence including
'affidavits, declarations, admissions, answers to interrogatories, depositions, and matters
of which judicial notice' must or may 'be taken.'" (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843 (Aguilar).)
"In ruling on the motion, the court must 'consider all of the evidence' and 'all' of
the 'inferences' reasonably drawn therefrom [citation], and must view such evidence
[citations] and such inferences [citations], in the light most favorable to the opposing
party." (Aguilar, supra, 25 Cal.4th at p. 843.) "[T]he party moving for summary
judgment bears an initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his burden of production,
he causes a shift, and the opposing party is then subjected to a burden of production of his
own to make a prima facie showing of the existence of a triable issue of material fact."
(Id. at p. 850.)
12
B. Informed Consent
It is difficult to determine exactly what legal arguments Enholm asserts on appeal.
A substantial part of Enholm's brief consists of complaints against her trial attorney. She
accuses him of having an undisclosed conflict of interest, and he allowed defendants "to
present false and misleading information to the court." She states her attorney "did not
oppose" summary judgment and "hi jacked" her case to "cover up" her injuries.
Enholm's brief admits she presented no material evidence to oppose summary
judgment. She blames her lawyer, stating, "Appellan[t's] attorney . . . he was the one
who did not rebut the expert evidence . . . . His failure to bring forth that 'conflicting
evidence' was prejudice that caused Appellant to lose her case." She acknowledges her
attorney admitted in open court she sustained no injuries; however, she contends her
attorney was actually "collaborating with" Cohen and this was "prejudice that caused
[her] to lose her case."
Enholm's complaints concerning her former lawyer are not properly before this
Court, and we do not consider them.
To the extent Enholm's brief frames legal issues challenging the judgment, her
arguments center on lack of informed consent. She asserts: (1) Cohen did not advise her
of "ALL" risks and benefits; (2) her case is "akin to Hanson v. [Grode] (1999) 76
Cal.App.4th 601," where Hanson "sued a medical physician just like Appellant"; (3)
Cohen's deposition "confirms that he subjected" her to an "unapproved medical
procedure"; (4) citing Berkey v. Anderson (1969) 1 Cal.App.3d 790, she contends Cohen
committed battery; (5) the reporter's transcript shows she suffered "disproportion" injury;
13
(6) Cohen did not file a separate statement of undisputed facts; (7) Cohen submitted only
one expert declaration, and Aguilar requires at least two declarations; (8) "Just because
Dr. Cohen provides an unopposed declaration by an expert does not necessarily mean the
court should grant summary judgment"; (9) Aronowitz's declaration "has no more worth
than another's declaration"; (10) Aronowitz's declaration was contradicted by a February
2012 People magazine article; and (11) citing Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, she contends the court "excluded evidence that would have reversed the
summary judgment." In her reply brief, Enholm adds that Nelson v. Gaunt (1981) 125
Cal.App.3d 623 is factually similar and requires reversal.
We address each of these issues below, after summarizing the applicable legal
principles.
C. Informed Consent—Law
The seminal case for informed consent for medical treatment is Cobbs v. Grant
(1972) 8 Cal.3d 229. There, our Supreme Court distinguished between two types of duty
to disclose. "[W]hen a given procedure inherently involves a known risk of death or
serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of
death or serious harm, and to explain in lay terms the complications that might possibly
occur. Beyond the foregoing minimal disclosure, a doctor must also reveal to his patient
such additional information as a skilled practitioner of good standing would provide
under similar circumstances." (Id. at pp. 244–245.) As the court subsequently explained
in Arato v. Avedon (1993) 5 Cal.4th 1172, expert testimony may be necessary to explain
14
the beyond-minimal-disclosure aspect of the duty, because the scope of such duty
depends on a professional standard. (Id. at p. 1191.)
D. Cohen Met His Burden
1. No injury
Liability for lack of informed consent attaches if (1) the physician failed to
disclose a known material risk inherent in the treatment, (2) the risk materialized, (3)
there is a casual relationship between the physician's failure to inform and the plaintiff's
injury because a reasonable person would have declined the treatment had she been
informed of the risk. (Cobbs v. Grant, supra, 8 Cal.3d at pp. 244-245.)
"An action for failure to obtain informed consent lies where 'an undisclosed
correspondence by Enholm's trial lawyer; and (12) "Instructions for Use, Stem Source
Reagent" by Cytori, dated September 2010.
At the hearing, Enholm argued that the October 2014 FDA document was "new
evidence" establishing the CEFT procedure Cohen performed was not an "off label" use
unregulated by the FDA, but was unlawful. " Enholm told the trial court:
" . . . It's very black and white here. You cannot manipulate these cells, you cannot change them, you absolutely cannot add Celase[6] . . . to them . . . . [¶] . . .
" . . . He manipulated my cells. He manipulated them with Celase. He does not qualify under the [FDA] exemption. That's exactly what this explains."
The trial court rejected this argument, stating, "This isn't new, though. This all
existed at the time of the summary judgment motion." When the trial court explained to
6 The record does not contain evidence explaining the CEFT procedure in any detail. The parties seem to agree, however, that Celase is a product manufactured by Cytori, and that Cohen used Celase in the CEFT procedure he performed on Enholm.
28
Enholm that the undisputed expert testimony contradicted her assertions, she blamed her
lawyer.
On appeal,7 Enholm contends the trial court "abused its discretion" in denying her
motion for new trial. She contends her attorney committed "misconduct and attorney
malfeasance" and had a "conflict of interest which he secretly was working for Cohen."
She contends this alleged attorney neglect constitutes "accident or surprise" warranting a
new trial under Fowlkes v. Ingraham (1947) 81 Cal.App.2d 745, 747. Enholm contends
that an October 2014 "clarification" from the FDA regarding CEFT is newly discovered
evidence also warranting a new trial.
B. The Standard of Review
Citing Passavanti v. Williams (1990) 225 Cal.App.3d 1602, Cohen's lawyers
contend that when a motion for new trial is made following summary judgment, the
motion may only be granted if there are new or different facts, circumstances, or law.
Cohen's argument is incorrect. The issue in Passavanti was whether a postjudgment
motion for reconsideration would be treated as a motion for new trial for purposes of
determining whether the filing of the motion extended the plaintiff's time to appeal from
the judgment. Passavanti does not address the grounds upon which a motion for new
trial may be made following a summary judgment. Contrary to Cohen's assertions, an
7 Enholm's notice of appeal, filed December 30, 2014, purports to appeal from the judgment entered October 17, 2014 and the order denying her motion for new trial. The order denying her new trial motion is not directly appealable; however, it is reviewable on appeal from the judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) 29
order granting summary judgment may be challenged by a motion for new trial on "'any
available statutory ground for a new trial.'" (Wall Street Network, Ltd. v. New York Times
Co. (2008) 164 Cal.App.4th 1171, 1176.)
Generally, rulings on new trial motions are reviewed for abuse of discretion.
(Aguilar, supra, 25 Cal.4th at p. 859.) However, in a motion for new trial following
summary judgment, the determinations underlying the denial dictate the standard of
review. To the extent the denial is based on resolving a question of law, we examine the
matter de novo. (Id. at p. 860.) To the extent the denial is based on issues not directly
related to the merits of summary judgment, such as whether there is newly discovered
evidence, we review the order for an abuse of discretion. (Hall v. Goodwill Industries of
Southern California (2011) 193 Cal.App.4th 718, 730.)
C. Enholm's Complaints Against Her Lawyer Are Not Grounds for New Trial
Section 657(3) provides that a new trial may be granted for "[a]ccident or surprise,
which ordinary prudence could not have guarded against." Enholm contends her
attorney's alleged conduct is accident or surprise warranting a new trial. We disagree. In
a civil case, "negligence of trial counsel is not a ground upon which a new trial may be
granted." (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155.)
Enholm's reliance on Fowlkes v. Ingraham, supra, 81 Cal.App.2d 745 is
misplaced. Fowlkes does not involve a motion for new trial brought on the ground of
alleged attorney malpractice or misconduct. It involves the entirely distinct issue of
whether an attorney has implied authority to waive his or her client's right of appeal. (Id.
at p. 748.)
30
D. No Newly Discovered Evidence
Under section 657(4), the trial court may grant a new trial based on "[n]ewly
discovered evidence, material for the party making the application, which he could not,
with reasonable diligence, have discovered and produced at the trial." In this statutory
context, "'material'" means likely to produce a different result." (Wood v. Jamison (2008)
167 Cal.App.4th 156, 161.)
The "newly discovered" evidence Enholm relies on has almost no probative value.
It is an FDA "Draft Guidance for the Industry" (italics added) relating to the "same
surgical procedure exception under 21 CFR 1271.15(b)." Enholm contends this is a
"clarification" establishing the CEFT procedure Cohen performed is regulated by the
FDA and is unlawful. However, the trial court correctly noted "[t]here are many things in
that . . . clarification that would require expert opinion to understand what's meant . . . ."
Enholm submitted no such expert testimony. Moreover, the document states: "This
guidance document is for comment purposes only." A header at the top of each page
states, "Draft—Not for Implementation." (Italics added.) The trial court did not abuse its
discretion in determining this "draft" document that is "not for implementation" does not
create a triable issue contradicting Aronowitz's declaration.
In any event, as the trial court remarked, this is nothing new. From inception,
Enholm's lawyer has asserted Cohen's manipulation of fat cells in the CEFT procedure
violated FDA regulations. The first sentence of Enholm's opposition to summary
judgment states, "This action arises from certain illegal and non-FDA approved medical
products and devices used on and injected into plaintiff by Defendant . . . ." As the trial
31
court correctly commented, "It's what you told me before." Enholm lost summary
judgment not because of the absence of this so-called "newly discovered evidence," but
because she submitted no expert testimony to contradict Aronowitz's declaration, and she
presented no evidence of damages. Nothing in the FDA document or any other so-called
newly discovered evidence Enholm lodged with her motion for new trial changed these
outcome-determinative and undisputed facts.
DISPOSITION
The judgment is affirmed. Cohen is entitled to costs on appeal.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
32
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the summary judgment in favor of the defendants, holding that the plaintiff failed to establish a triable issue of material fact regarding her claims of medical malpractice, fraud, and lack of informed consent, particularly because she failed to demonstrate any legally compensable injury resulting from the surgery.
Issues
Did the trial court err in granting summary judgment when the plaintiff failed to present evidence of a legally compensable injury?
Did the trial court abuse its discretion in denying the plaintiff's motion for a new trial?
Did the plaintiff meet her burden of production to show a triable issue of material fact after the defendants established a prima facie case for summary judgment?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Enholm has not designated an adequate record to demonstrate error.”