Judge Stephen I. Goorvitch, Case 19STCV24594 2023-04-24 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 19STCV24594, Date: 2023-04-24 Tentative Ruling

Case Number: 19STCV24594 Hearing Date: April 24, 2023 Dept: 39

Bernice Cross v. Sam Gabriel Medical Center, et al.

Case No. 19STCV24594

Pretrial Rulings

A. Order to Show Cause re: Preference

The Court issued an Order to Show Cause why this case should not be divested of preference and re-set for trial commensurate with a new case having been assigned to Department #39. The Court issued the OSC because Plaintiff’s counsel referred to this case in motions in limine as a “wrongful death case,” suggesting that her client passed away. Plaintiff’s counsel submitted a declaration stating that the reference was an error and that she personally saw her client, Bernice Cross, during a mediation on April 17, 2023. (See Declaration of Lisa Trinh Flint, ¶ 5.) Plaintiff’s counsel also submitted a declaration from the guardian ad litem, Lisa Robin Cross, stating that her mother, Bernice Cross, is 99 years old and is still alive as of April 20, 2023. (See Declaration of Lisa Robin Cross, ¶ 5.)

The Court discharges the Order to Show Cause. However, the Court orders Plaintiff’s counsel and Ms. Lisa Robin Cross to update the Court and Defendants’ counsel forthwith if Ms. Bernice Cross’s status changes. The Court provides notice that any failure to notify the Court and Defendants’ counsel of Ms. Cross’s status in order to maintain a preferential trial date may result in sanctions, including terminating sanctions, and/or a referral to the California State Bar Association.

B. Order to Show Cause re: Bifurcation

The Court issued an Order to Show Cause why the liability and damages phases should not be bifurcated. The Court discharges the Order to Show Cause for the reasons stated in Plaintiff’s counsel’s response. The Court also finds that bifurcation is not necessary because the Court can ensure efficiency through the trial estimate.

C. Trial Estimate

The parties estimate that the testimony in this case will take 50 hours. This would result in a trial estimate of approximately 14 days, including jury selection and opening statements/closing arguments, which is grossly excessive for a case of this nature. “Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. . . . This view is not only contrary to law but undermines a trial judge's obligation to be protective of the court’s time and resources as well as the time and interests of . . . jurors and other litigants waiting in line to have their cases [tried].” (California Crane School, Inc. v. National Com. For Certification of Crane Operators (2014) 226 Cal.App.4th 12, 20.) Indeed, this concern is critical, as Department #39 currently has 646 open cases, which gives rise to constant jury trials and heavy motions calendars. The parties’ unreasonable time estimate deprives other litigants of their trial dates.

Based upon the Court’s review of the record, as well as the Court’s experience trying cases of this nature, the Court believes that a reasonable time estimate is 14 hours for each side, absent unforeseen circumstances or other good cause. This estimate shall include everything from opening statements to closing arguments, but shall not include voir dire, which shall be addressed separately.

D. Special Verdict Form

Both parties stipulated to the proposed special verdict form in open court.

E. Evidence of Plaintiff’s Fall

The Court understands that Plaintiff’s counsel intends to prove that his client fell and fractured her hip while a resident of Defendants’ facility based upon the following evidence: (1) X-rays that show Plaintiff had a severe fracture of the right hip bone; (2) Evidence that Plaintiff had been a resident of Defendants’ facility for four days before the fracture was discovered; (3) Testimony from Dr. Edward Chan that it is more likely than not that Plaintiff did not develop this fracture before her admission because she would not have been able to walk/run on the street otherwise; (4) Testimony from Dr. Andrew Keyoung concerning when this fracture occurred from a radiological standpoint based upon the x-rays, i.e., during the time of Plaintiff’s admission to the facility; and (5) Testimony from Dr. Peter Kurzweil that the facture occurred as the result of trauma, e.g., a fall.

The Court orders Plaintiff’s counsel to file an offer of proof concerning any fact witnesses who will provide direct evidence that Plaintiff fell while at Defendants’ facility. Plaintiff should identify any witnesses who will testify, for example, that they observed Plaintiff fall at the facility; they discovered Plaintiff on the floor at any point; they observed Plaintiff engaging in activities that could lead to a fall, etc. Plaintiff’s counsel shall file this offer of proof on or before April 27, 2023, at 1:30 p.m., and to email a courtesy copy to the Court at the following email address: SMCDept39@LACourt.org.

F. Exhibit List

The parties did not comply with the Court’s order to note on the exhibit list whether there are stipulations to authenticity and/or admissibility. Therefore, the Court’s tentative order is to pre-admit the following exhibits:

Exhibit Nos. 1, 3 & 25 – Presumably, witnesses will be able to authenticate these exhibits

Exhibits Nos., 2, 3, 5-14 & 22 – These exhibits appear to be business records

Exhibit Nos. 100-102 & 104-111 – These exhibits appear to be business records

However, the Court’s tentative order is that Plaintiff shall redact any references in these records to “reports” that Plaintiff may have fallen for the reasons discussed in the Court’s ruling on Defendants’ motion in limine on this issue. These references include:

- “There was a report that while [Plaintiff] was in the psych unit, she was found down on the ground and may have fallen out of her bed. Theis was a couple days ago. At that time, she has been unable to get up and ambulate and has been complaining of more right hip pain.”

- “However, there was report of a possible fall out of bed, as she was found on the side of the bed during her admission, and was unable to ambulate afterwards.”

The Court will revisit the issue of the redactions if Plaintiff’s counsel proffers admissible evidence in support of these references in response to Section E above.

The Court’s tentative order is that the parties may use demonstratives (e.g., Exhibit Numbers 15, 26 and 112) but they would not be admitted into evidence. The Court would instruct the jury that the testimony and admissible exhibits are the evidence in the case, and the demonstratives are intended only to help them understand that evidence.

The Court has no tentative order concerning the remaining exhibits. In particular, the Court has no tentative order whether evidence of the Medicare lien is admissible. The Court has reviewed Plaintiff’s brief on this issue and orders Defendants’ counsel to file a response on or before April 27, 2023, at 1:30 p.m., and to email a courtesy copy to the Court at the following email address: SMCDept39@LACourt.org.

G. Disclosure of Witnesses and Exhibits

There is no trial by ambush in the Los Angeles County Superior Court. Therefore, the Court orders the parties to identify all witnesses whom they intend to call in their respective cases-in-chief. The Court also orders the parties to exchange all exhibits they intend to introduce in their respective cases-in-chief. The parties shall do so forthwith if they have not done so already.

H. Plaintiff’s Motions in Limine

1. To preclude Lori Zaccari from providing a standard of care opinion – DENIED

Plaintiff seeks to exclude Lori Zaccari from providing an opinion concerning the standard of care because Zaccari “has never worked in a behavioral unit or psychiatric hospital.” The relevant inquiry is whether Zaccari is familiar with the appropriate standard of care for a patient like Plaintiff in a setting like Defendants’ facility. This does not require that Zaccari has ever worked in a behavioral unit or psychiatric hospital. The issue raised by Plaintiff goes to weight, not admissibility, which falls within the province of the jury. Therefore, the motion is denied.

2. To permit Plaintiff’s nursing expert to introduce the statutes and regulations applicable to Defendants – NO TENTATIVE ORDER

Plaintiff’s counsel seeks to have his expert witness testify about, and introduce, the statutes and regulations applicable to Defendants’ facility. There is a rebuttal presumption that a breach of due care has occurred where there has been a violation of the statute, per Evidence Code section 669. However, Plaintiff’s motion does not provide sufficient information for the Court to rule on this issue because he does not specify which regulations/statutes are at issue. Plaintiff’s counsel references “State and Federal guidelines and regulations, including, but not limited to, Title 22 of the California Code of Regulations, Title 42 of the Code of Federal Regulations, and Defendant’s own Nursing Policies and Procedures.” (Plaintiff’s Memorandum of Points & Authorities, p. 10:1-4.)

Based upon the foregoing, the Court orders Plaintiff’s counsel to file an offer of proof identifying which statute(s) his expert seeks to introduce, as well as what testimony the expert will provide concerning: (a) how the applicable statutes define the standard of care; and (b) how Defendants’ violated those statutes. Plaintiff’s counsel shall include a copy of the applicable statutes. The Court orders Plaintiff’s counsel to file the offer of proof on or before April 27, 2023, at 1:30 p.m., and to email a courtesy copy to the Court at the following email address: SMCDept39@LACourt.org. The Court will hold a 402 hearing on the first day of trial if necessary.

I. Defendants’ Motions in Limine

1. To exclude inadmissible hearsay – GRANTED WITHOUT PREJUDICE

Defendants seek to exclude testimony from Plaintiff’s expert, Dr. Edward Chan, that Plaintiff “may have fallen” or that there was a “possible fall.” Of course, Dr. Chan may testify that Plaintiff may have fallen based upon his review of the X-rays and examination of Plaintiff. Similarly, Dr. Chan may testify that Plaintiff likely fell while a resident of Defendants’ facility based upon his opinion that she could not have walked/run on the street. However, the motion is granted in that Dr. Chan may not testify that there was a potential fall based upon notes in the file, as his testimony makes clear that he has no personal knowledge of this fact. The Court also finds that the notes contain multiple levels of hearsay and are unreliable on this point, and to permit Dr. Chan to reference them would violate People v. Sanchez (2016) 63 Cal.4th 665. For example, Dr. Chan may not testify about, or rely upon, the following references in rendering an opinion:

- “However, there was report of a possible fall out of bed, as she was found on the side of the bed during her admission, and was unable to ambulate afterwards.”

Therefore, the motion is granted. The Court will revisit this issue if Plaintiff’s counsel proffers admissible evidence in support of these references in response to Section E above.

2. To exclude evidence of violations of the standard of care that did not cause, or contribute to, Plaintiff’s injuries

The Court does not have sufficient information to deicide this motion. The Court orders Defendants’ counsel to file an offer of proof concerning all references at issue, including copies of the relevant transcripts, on or before April 27, 2023, at 1:30 p.m., and to email a courtesy copy to the Court at the following email address: SMCDept39@LACourt.org. The Court will hold a 402 hearing on the first day of trial if necessary.

3. To exclude evidence of personal practices – DENIED

Defendants seek to exclude testimony from expert witnesses concerning their “personal practices.” The relevant inquiry is the standard of care. An expert witness is permitted to testify how they adhere to the standard of care in their practice. To the extent an expert witness’s practices exceed the standard of care, Defendants’ counsel is free to cross-examine the expert witness on this issue. Therefore, the motion is denied.

4. To exclude any reference to an unsuccessful motion for summary judgment – GRANTED

5. To limit the testimony of expert witnesses to the opinions, facts, and conclusions at the time of their depositions and expert designations – DENIED WITHOUT PREJUDICE

Defendants seek to limit Plaintiff’s expert witnesses to the opinions, facts, and conclusions at the time of their depositions and expert designations. The Court cannot rule on this issue in advance of trial for two reasons. Kennemur holds that a party “must disclose either in his witness exchange list or at his expert’s deposition, if the witness is asked, the substance of the facts and the opinions which the expert will testify to at trial.” (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919.) The Court does not know whether Defendants’ counsel asked the standard “close-out questions” under Kennemur during their depositions. Also, the Court does not know whether there may be a basis to permit Plaintiff to elicit testimony under Code of Civil Procedure section 2034.310(b), i.e., “testimony to the facility or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness . . . .” Therefore, the motion is denied without prejudice.

6. To exclude evidence not disclosed in discovery – DENIED WITHOUT PREJUDICE

Defendants seek to preclude Plaintiffs from calling any witnesses and introducing any exhibits not disclosed in response to discovery requests. The Court will address this issue at trial if necessary. The Court cannot exclude witnesses or evidence not identified or produced during discovery unless the omission violated a court order or otherwise was willful. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422-1434; see also Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.) Therefore, the motion is denied without prejudice.

7. To preclude Plaintiff from calling Defendants’ experts during her case-in-chief – GRANTED WITHOUT PREJUDICE

Defendants seek an order precluding Plaintiff from calling the defense expert witnesses during her case-in-chief, in advance of her own expert witnesses. The Court grants the motion under its inherent authority to control the manner and nature of the proceedings. A percipient witness may be called in a plaintiff’s case-in-chief under Evidence Code section 776 because they may have facts relevant to the Plaintiff’s case. However, an expert witness is retained by the defense specifically in response to Plaintiff’s expert witnesses. In the alternative, the Court grants the motion under Evidence Code section 352. The Court finds little probative value in allowing Plaintiff to call Defendants’ expert witnesses before their own expert witnesses. The Court finds that any probative value is greatly outweighed by the confusion of the issues and the wasting of time. Indeed, the jury should hear Plaintiff’s expert witnesses before Defendants’ expert witnesses to keep the evidence organized. Therefore, the motion is granted. However, the Court will reconsider this ruling if Defendants’ counsel moves for a nonsuit; the Court’s tentative order is to grant the motion; and Plaintiff’s counsel requests to reopen his case-in-chief and identifies specific testimony that Defendants’ experts would provide that would defeat the motion for nonsuit.