Milner v. Regents of U.C. CA4/1 (2013) · DecisionDepot
Milner v. Regents of U.C. CA4/1
California Court of Appeal Apr 11, 2013 No. D060037Unpublished
Filed 4/11/13 Milner v. Regents of U.C. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
LARRY D. MILNER, SR., D060037
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2008-00078431- CU-PO-CTL) THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Luis R.
Vargas, Judge. Reversed.
Plaintiff and appellant, Larry D. Milner, Sr. (Plaintiff) sued defendant and
respondent, The Regents of the University of California (the Regents) on medical
malpractice theories arising out of the death of his 29-year-old son, Larry Milner, Jr.
("Larry Jr."), who was hospitalized at the Regents' University of California San Diego
Medical Center and being treated for a variety of medical problems. Since Plaintiff was
representing himself in the trial court and was out of the country on military deployment
after he filed his complaint, the court granted several continuances of the trial date. The
month before trial, the court denied a summary judgment motion by the Regents, after
Plaintiff supplied a declaration about causation of harm from a retained expert medical
must be sufficient to allow the jury to infer that in the absence of the defendant's
negligence, there was a reasonable medical probability the plaintiff would have obtained
a better result." (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)
Although causation is generally a question of fact for the jury, expert testimony
may in some cases preclude a finding of causation by a trier of fact. In such cases, the
causation question is decided as a matter of law. (See Duarte v. Zachariah (1994) 22
Cal.App.4th 1652, 1656-1660; Lucas v. County of Los Angeles (1996) 47 Cal.App.4th
277, 288-289; Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666.)
Because of specialized medical malpractice evidentiary principles, a trial court
ruling on a nonsuit request must closely scrutinize the stated facts underlying the expert's
declaration of opinion, and cannot take unsupported or speculative opinions at their face
value. (Jennings, supra, 114 Cal.App.4th 1108, 1118.) Nevertheless, Dr. Fischer's
declaration here was deemed adequate to withstand the Regents' summary judgment
motion on causation issues. Because of the late designation and the grant of nonsuit, no
deposition of Dr. Fischer was conducted, to further test his opinions for their validity, and
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there was no resolution of this case on the merits. We are concerned that the trial court
treated this set of evidentiary and nonsuit motions as only a renewed summary judgment
motion, to justify throwing the case out on the basis of the same declarations as
previously presented. With those concerns in mind, we next examine the record on the
application of the statutory criteria of section 2034.720.
III
APPLICATION OF RULES
The Regents' nonsuit request, as it was guided and shaped by the trial court,
challenged the causation element of Plaintiff's professional negligence claim, and
asserted that no evidence would support an inference that the delay or manner of
treatment of Larry Jr.'s lung ailment "caused" any harm to him. Under the above
standards for consideration of expert testimony, the lack of an available expert doomed
Plaintiff's case. "Although a judgment of nonsuit must not be reversed if plaintiff's proof
raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if
there is 'some substance to plaintiff's evidence upon which reasonable minds could
differ . . . .' " (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.) The
discretionary ruling disallowing the expert evidence must be evaluated in light of the
criteria provided in section 2034.720. (See Zellerino, supra, 235 Cal.App.3d 1097,
1107.)
According to section 2034.720, subdivision (a), on the topic of any reliance by the
Regents on the absence of Plaintiff's formal list of expert witnesses, we note that Plaintiff
obtained a trial continuance in December 2010, and announced at that time that he had
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retained a medical expert. During the summary judgment motion proceedings, counsel
for the Regents pointed out that Plaintiff had still failed to designate an expert. After
summary judgment was denied, Plaintiff gave input to the Regents' counsel for
preparation of the joint TRC report, which lists Dr. Fischer as a witness. A week later,
Plaintiff served a formal expert designation, which he had apparently prepared March 15.
The December 2010 order that continued the trial referred to "all dates," and
Plaintiff could have reasonably relied on that order to believe that the July 2010
designation dates no longer controlled. Although we do not give special weight to his
status as a litigant in propria persona, it appears that he was distracted by the ongoing
summary judgment proceedings and lost his focus on other technical litigation
requirements.
However, there is no indication in the record that this Plaintiff's loss of focus
amounted to the kind of gamesmanship or manipulation that has been found to be
unworthy of relief from late designations. (See Zellerino, supra, 235 Cal.App.3d at
p. 1117; Boston, supra, 170 Cal.App.4th at p. 954.)
Nor do we base our analysis on any "exacerbation" of the situation by the party
seeking exclusion, the Regents. (Boston, supra, 170 Cal.App.4th 936, 954.) Instead, we
are presented with somewhat ambiguous court orders, and we think the confusion that
resulted was to be expected and was not completely unreasonable. For example, the joint
TRC report prepared by the parties is at least inaccurate, and at most sloppy and
misleading, on the status of the expert designation orders. (See Stanchfield, supra, 37
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Cal.App.4th 1495, 1504 [reasonableness limitation may prevent parties from waiting
until trial to raise objections that could have been raised beforehand].)
Regarding the Regents' degree of prejudice or inability to defend on the merits
(§ 2034.720, subd. (b)), it is most regrettable that Plaintiff did not comply with disclosure
requirements and make Dr. Fischer available earlier for deposition. The Regents
justifiably pointed out that Dr. Fischer's declaration was at least somewhat conclusory
and speculative, under case law standards. (Jennings, supra, 114 Cal.App.4th at pp.
1117-1118.) However, it is possible that more information could be gained at deposition,
without undue prejudice to the Regents' defense, except for expenditures of time and
money. Under section 2034.720, subdivision (d), an order allowing a tardy designation
must be conditioned upon the moving party making the expert available immediately for
deposition, and on any other terms as may be just, and the court apparently failed to
consider such options. The trial court may have had second thoughts about the previous
denial of the summary judgment motion, but these rulings were made in an entirely
different legal context, and they required consideration of more than the current adequacy
or inadequacy of Dr. Fischer's declaration.
Regarding Plaintiff's required degree of diligence, he showed some justification
for his failure to submit the information earlier as the result of mistake, inadvertence,
surprise, or excusable neglect. (§ 2034.720, subd. (c)(1).) He notified the court and
counsel about his reliance on Dr. Fischer's expert opinion around the time that the order
was made continuing trial and "all dates." Once the summary judgment motion was
denied, Plaintiff took action to prepare the designation, only to go off track again when
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settlement discussions were scheduled. Nevertheless, he did not completely hide the ball
or thwart discovery. (Zellerino, supra, 235 Cal.App.3d 1097, 1117.)
The operative inquiry should be whether Plaintiff's delays and misunderstandings
were so egregious as to prevent him from taking advantage of the policy promoting
resolution of cases on the merits, and of the main purposes of the discovery statutes: to
ascertain the truth; to educate the parties as to the strengths of their claims and defenses;
to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against
surprise. (Boston, supra, 170 Cal.App.4th at p. 950.)
We think the trial court was mistaken about the circumstances as they affected the
scope of its discretion. "[I]f the trial court acts in accord with its mistaken view the
action is nonetheless error; it is wrong on the law." (City of Sacramento v. Drew, supra,
207 Cal.App.3d 1287, 1298.) We do not substitute our discretion for that of the trial
court, but we do find that the court failed to act in accordance with the statutory
guidelines when it terminated the case for these technical procedural problems, in light of
the lack of showing of undue prejudice to the Regents, and the availability of lesser
remedies under the statute. Under all the relevant circumstances and the statutory
guidelines, the trial court's rulings to exclude Plaintiff's expert designation and to grant a
nonsuit amounted to an abuse of discretion and error. We reverse.
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DISPOSITION
The judgment is reversed. Each party shall bear its own costs on appeal.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
21
AI Brief
AI-generated · verify before citing
Holding. The trial court abused its discretion by excluding the plaintiff's expert witness and granting a nonsuit, as there was no showing of undue prejudice to the defendant and the court failed to properly apply the statutory criteria for relief from a late expert designation.
Issues
Did the trial court abuse its discretion by excluding the plaintiff's expert witness for late designation?
Was the granting of a nonsuit proper given the exclusion of the plaintiff's expert testimony on causation?
Disposition. reversed
Quotations verified verbatim against the opinion
“the trial court abused its discretion in excluding the expert testimony, since there was no showing of undue prejudice to the Regents in allowing a late designation conditioned on a reasonable process for deposition.”
“The trial court did not adequately apply the statutory criteria in section 2034.720, the nonsuit was unwarranted, and we reverse the judgment.”