Hernandez v. Estate of Hopkins
Filed 6/26/07 Hernandez v. Estate of Hopkins CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
ISRAEL HERNANDEZ et al., Plaintiffs, Respondents and Cross-Appellants, v. THE ESTATE OF CHARLES W. HOPKINS, Defendant, Appellant and Cross-Respondent. | B182407 (Los Angeles County Super. Ct. No. BC290281) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Ricardo A. Torres, Judge. Affirmed.
Horvitz & Levy, David M. Axelrad, H. Thomas Watson and Karen M. Bray; Hemer & Barkus and Ramune E. Barkus for Defendant, Appellant and Cross-Respondent.
Edward J. Seltzer and Edward J. Horowitz for Plaintiffs, Respondents and Cross-Appellants.
INTRODUCTION
Janitor Israel Hernandez contracted human immunodeficiency virus (HIV) after being twice stuck by bloody needles that had been improperly placed in the regular trash in the medical suite leased by Charles W. Hopkins, M.D. Mr. Hernandez and his wife Vilma (together Hernandez or plaintiffs) brought this action seeking damages for negligence, premises liability, negligence per se, and loss of consortium against, among others, Dr. Hopkins, who has since died. His estate (the Estate) appeals from the judgment entered upon a jury verdict awarding plaintiffs $1 million based on a finding that Dr. Hopkins was 50 percent responsible for plaintiffs injuries. Plaintiffs cross‑appeal challenging the calculation of damages. We affirm the judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
1. The CrenshawMedicalCentersSuite 507
The Crenshaw Medical Center was owned by a number of entities that were owned by defendant Safco Capital Corporation and its related companies (Safco). K & P Janitorial (K & P) provided janitorial services to the Crenshaw Medical Center. K & Ps responsibilities were limited to dusting, vacuuming, sweeping, mopping floors, and emptying the ordinary trash containers. K & Ps contract did not include handling medical waste. Such biohazardous waste, including sharps, i.e., needles, by law must be placed in a separate, special container.[1]
Tenants in the Crenshaw Medical Center were responsible for properly disposing of sharp instruments and medical waste. A professional service, not K & P, emptied the special disposal containers for biohazardous waste. The doctor who uses or supervises the use of a sharp instrument is responsible for its proper disposal. [T]he buck stops with the doctor.
Dr. Hopkins practiced cardiology for many years. His practice did not include the use of sharp instruments or the performance of any invasive procedures, and did not generate medical or biohazardous waste.
Dr. Hopkins was the sole lessee of suite 507 in the Crenshaw Medical Center as of 1986. By 2002, he was suffering from ill health. He had coronary artery disease, prostate cancer, anemia, and Alzheimers disease. After January 1, 2002, Dr. Hopkins had no employees in suite 507. Still, Dr. Hopkinss business card was on display in suite 507 on September 3, 2002.
By January 1, 2002, Dr. Hopkins allowed Dr. Nolan C. Jones, who practiced obstetrics and gynecology, to occupy space in Suite C507 until Dr. Hopkinss lease ended. Dr. Hopkins believed Dr. Jones was an obstetrician/gynecologist practicing and performing surgeries associated with that profession in suite 507.
Dr. Hopkins did not inform Safco that he permitted Dr. Jones to occupy the suite. Dr. Hopkins remained the lessee of suite 507 between January 1, 2002, and September 2002. As far as Safcos off-site property manager for the Crenshaw Medical Center, Thomas Klugman, knew, Dr. Hopkins was the only one in suite 507, and was still practicing medicine there. Mr. Klugman did not know that Dr. Jones was present in suite 507 until after this lawsuit was commenced.
Mr. Hernandez testified that in 2002 [t]here were two doctors that were working inside suite 507. One doctor was an older man who was a heart specialist, who was in poor health, and who had a difficult time walking. He would come to the office to pick up his mail and leave. The other doctor was a younger man. Mr. Hernandez thought the younger doctor was doing abortions because you could see the waste in the trash.
The condition of suite 507 in 2002 was unsanitary. Although the suite had sharps containers for disposing of hazardous waste, needles were repeatedly thrown in the regular trash. Also, there was a really foul stench inside. Mr. Hernandez described plastic bags that were ripped and had blood squirting out onto the floor. Over the course of five or six nights, Kelly Lynch, owner of K & P, and her insurance agent inspected suite 507 and took photographs showing needles in the ordinary trash every night.
2. Mr. Hernandez is stuck by bloody needles in January and February 2002
Vilma and Israel Hernandez were married in 1991 and have four children, one of whom was conceived after the incidents that gave rise to this lawsuit. They have been faithful to each other and Mr. Hernandez never used illegal drugs or needles. He had tested negative for HIV prior to 2002.
In 2000, plaintiffs began working for K & P and in 2002 were assigned to the Crenshaw Medical Center where their duties included suite 507.
In January 2002, Mr. Hernandez was pushing down on trash from the ordinary trash bin when his hand was stuck by a bloody needle attached to a syringe. The needle was wrapped in paper that doctors use for beds. Mr. Hernandez was wearing disposable gloves at the time because the offices were filthy. Mrs. Hernandez immediately cleaned the wound with alcohol.
Mr. Hernandez immediately reported the needle incident to his supervisor, Araceli Aguirre, who told him she would take care of the matter. The following day, Aguirre reported the incident to manager Klugman.
3. Dr. Hopkins is notified of the incident
On January 23, 2002, Mr. Klugman sent a letter to Dr. Hopkins at suite 507, through regular mail, notifying Dr. Hopkins that the regular trash has contained needles and other sharp objects and that Mr. Hernandez had been stuck by a needle.
Mr. Klugman testified that a couple of weeks later he made a follow-up telephone call. The person in suite 507 who answered Mr. Klugmans call stated, Dr.s office and informed Klugman that they did receive a letter and the matter had been taken care of.
The lease gave Dr. Hopkins a time frame in which to correct problems such as the improper disposal of biohazardous waste. Dr. Hopkins admitted receiving Mr. Klugmans letter. However, there is no evidence that Dr. Hopkins took any action to fix the situation as, about a month after the first incident, in February 2002, Mr. Hernandez was again stuck by a needle that was attached to a syringe half‑full of blood and that had been placed in the regular trash.
Dr. Hopkins stated in discovery that he did not see body tissue being disposed of, and did not observe medical waste, needles, or syringes being disposed of, in the normal trash in suite 507 between January 1, 2002, and September 2002.
Mr. Hernandez was diagnosed in August 2002 with HIV.[2]
4. Dr. Hopkins closes his office four months later
On December 28, 2002, nearly a year after Mr. Hernandezs accidents, Dr. Hopkins sent a handwritten letter to his landlord stating due to health reasons I will be closing my office effective February 1, 2003. January 2003 will be my last month. The letter was signed Charles Hopkins.[3] Dr. Hopkins died on December 30, 2003, of cardiac arrest caused by coronary heart disease.
5. The result of Mr. Hernandezs illness
Since his diagnosis, Mr. Hernandez has been different in almost everything. Hes not the same kind of husband. His medications make him nauseous and he throws up his food. He has trouble keeping his weight up. He also suffers from diarrhea and must wear diapers.
Plaintiffs infectious diseases expert, Dr. Jeffrey Galpin, explained that HIV is transmitted through the transfer of infected fluid from one person to another by a needle puncture or sexual contact. Typically, people have between 500 to 1,500 T-cells per milliliter of blood. A person whose T-cell count drops below that amount has HIV. The condition is called AIDS when the T-cell count drops below 200 per milliliter. Dr. Galpin stated, HIV/AIDS is a needle stick disease. That is, [t]he easiest way to get it, is . . . needle.
Dr. Galpin testified to a medical certainty that it was more likely than not that Mr. Hernandez contracted the HIV virus from either one, or two, or both needle jabs occurring in suite 507. Dr. Galpin opined that Mr. Hernandez picked up HIV from having a couple of needle sticks where he worked in . . . office suite 507 . . . . Several factors give a probability of a very high result when . . . put . . . all together (italics added) including: (1) Mr. Hernandezs past history lacked other risk factors; (2) Mr. Hernandez did not also have other diseases that show up with people who lead promiscuous lives or have been IV drug users; and critically, (3) Mr. Hernandezs CD4 (T-cell) count was low when he was diagnosed and he had a modest elevation of viral load, indicating that he had contracted HIV recently. There are lots of people that get sick right away.
Asked whether one could predict which needle stick caused Mr. Hernandezs HIV, Dr. Galpin responded, It is not predictable. It doesnt really matter. But what is predictable is if you get more than one, you have twice the chance of getting the disease. So I dont care which one gave it, but its sort of like if you have a million lottery tickets, you have a better shot at the lottery. If you get one needle stick, you have one out of a certain number. If you have two needle sticks, you double your risk. . . . The only importance of the January/March needle sticks, which means there was more than one which increased the risk.
Dr. Galpin explained, it was huge that Mr. Hernandez did not have other risk factors. If you dont have any other risk factors, youre stuck with a bunch of needles and have blood on them and youve been diagnosed with HIV, likelihood . . . thats where the money is. Thats the likely place it is.
The Estates expert, Dr. Eric Daar, opined to a reasonable medical probability that Mr. Hernandez did not get HIV from a needle stick in January or March 2002. He based his opinion on (1) the relatively low likelihood that the patients in suite 507 were infected with HIV where only Dr. Jones was using needles in suite 507, and his patients were women, who make up a much smaller percentage of the population of those infected with HIV. (2) Three in a thousand people are exposed to the disease from a needle puncture where the blood has been exposed to air for a while and so the CDC[4] recommends unless there is a really high suspicion that there was likely to have been blood with HIV in the trash, that one should not start treatment after being stuck by a needle in the trash in a clinic. (3) The risk of infection was reduced here because Mr. Hernandez was wearing gloves at the time and the needles were wrapped in paper. (4) Even assuming the needles contained HIV-infected blood, the average person does not have as low a T-cell count as Mr. Hernandez (237 T-cells per milliliter) within the first year of exposure. One study showed that five percent of people in the first year of infection have a T-cell count as low as Mr. Hernandezs. Dr. Daar had no opinion to a reasonable medical certainty how Mr. Hernandez contracted HIV. Dr. Daar was optimistic about the way Mr. Hernandez has responded to therapy.
Dr. Daar acknowledged that the probability of HIV infection from needle sticks differs depending on factors such as whether the needle had blood on it or was attached to a syringe that had blood in it. The probability also depended on the type of clinic and type of patients who were undergoing surgery in suite 507.
6. The lawsuit
Plaintiffs filed their complaint in February 2003. After several amendments, the complaint named Dr. Hopkins, Safco, K & P, and Dr. Jones as defendants, and alleged causes of action sounding in negligence, premises liability, negligence per se, and loss of consortium. Safco cross-complained against Dr. Hopkins, Dr. Jones, and K & P seeking indemnity and declaratory relief.[5] Neither Dr. Hopkins nor his Estate ever filed a cross-complaint against Dr. Jones. After Dr. Hopkinss death, his estate answered the sixth amended complaint.
After trial, the court instructed the jury on, inter alia, negligence, premises liability, and negligence per se. By special verdict, the jury found that Safco and Dr. Hopkins owned, leased, occupied, or controlled the property; both Safco and Dr. Hopkins were negligent in the use or maintenance of the property, and their negligence were substantial factors in causing Mr. Hernandezs harm. It found that Safco was 35 percent, Dr. Hopkins was 50 percent, Jones 0 percent, K & P was 10 percent, and Mr. Hernandez was 5 percent responsible for plaintiffs losses.
The jury awarded Mr. Hernandez $1.2 million in future medical expenses, $200,000 in past non-economic loss, $1.8 million in future non-economic loss for a total of $3.2 million. The jury awarded $1 million to Mrs. Hernandez for past and future non‑economic damages and loss of consortium.
On plaintiffs motion, the court awarded interest pursuant to Code of Civil Procedure section 998 and former section 2033, subdivision (o) [now 2033.420]. Citing Probate Code section 554, the court ordered that the judgment against the Estate, including damages, interest, and costs be capped at the $1 million limit of Dr. Hopkinss insurance policy.
After judgment was entered, the Estate moved for a new trial and judgment notwithstanding the verdict, and filed its notice of appeal. The trial court denied the Estates motions. Thereafter, the Estate filed its second notice of appeal and plaintiffs filed their cross-appeal.
CONTENTIONS
In its appeal, the Estate assigns as error: (1) insufficiency of the evidence of (a) negligence and (b) causation; (2) erroneous evidentiary rulings in (a) barring Dr. Jones from testifying and (b) ruling that MICRA did not apply; (3) error in instructing on (a) premises liability, (b) negligence per se, and (c) causation; (4) error in denying a new trial motion for juror misconduct; and (5) excessive damages.
In their cross-appeal, plaintiffs contend that the trial court erred in reducing the entire award, including costs and interest, to the limits of the Estates insurance pursuant to Probate Code section 554.
DISCUSSION
I. THE APPEAL
1. The evidence was sufficient to support the jurys finding that Dr. Hopkins was negligent and his negligence was a substantial factor in Mr. Hernandezs injury.
a. There was substantial evidence that Dr. Hopkins breached his duty as a tenant
The Estate contends that there is insufficient evidence that Dr. Hopkins was liable for Mr. Hernandezs injury because plaintiffs did not present evidence that Dr. Hopkins knew about the dangerous condition.
[T]he existence and scope of a defendants duty of care is a legal question for the court to decide [citation], and . . . a person who exercises control over property owes a duty of care to persons injured by a dangerous condition on that property. The determination of this issue, however, does not eliminate the role of the trier of fact. In an action for negligence the plaintiff has the burden of proving [] (a) facts which give rise to a legal duty on the part of the defendant . . . . [Citations.] Where a triable issue of fact exists, it is the function of the jury to determine the facts. [Citation.] (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, fn. 4 (Alcaraz).)
Turning to the law of premises liability, [i]n the landmark case of Rowland v. Christian [(1968)] 69 Cal.2d 108, the Supreme Court rejected the distinctions made by the common law as to invitees, licensees, and trespassers, and held that an owner or occupier of land owed the same standard of care as others. Negligence was based upon whether, in the management of ones property, reasonable care was used to prevent injury to others. [Citation.] (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779, italics added; see also Civ. Code, 1714 [Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his or her property or person . . . .].)
Generally, A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134; accord, Alcaraz, supra, 14 Cal.4th at p. 1162.) The important thing in the law of torts is the possession, and not whether it is or is not rightful as between the possessor and some third person. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, 1083, p. 407, quoting from Rest.2d Torts, 328E, com. a, p. 171.) [T]he phrase own, possess, or control is stated in the alternative. [Citation.] A defendant need not own, possess and control property in order to be held liable; control aloneis sufficient. (Alcaraz, supra, at p. 116, third italics added.)[6]
There was sufficient evidence from which the jury could conclude that Dr. Hopkins possessed or controlled suite 507, thus giving rise to a duty to use reasonable care to prevent injury to others. Dr. Hopkins was the sole lessee of suite 507. He was the only person on the lease. He did not notify Safco or Mr. Klugman that Dr. Jones was occupying space in suite 507 or that he was no longer practicing medicine until almost a year after Mr. Hernandez was stabbed. Mr. Klugman and Safco only knew that Dr. Hopkins was the sole person occupying suite 507 and practicing medicine there. This is strong evidence that Dr. Hopkins had exclusive possession and control. (Cf. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514 [the exclusive possession of rented premises normally is vested in the tenant].) Dr. Hopkins was the only person legally entitled to possession of suite 507.
Notwithstanding that owning, possessing, or controlling are stated in the disjunctive and there was sufficient evidence to support the verdict based on Dr. Hopkinss lease and hence possession alone, there was also evidence from which the jury could conclude that Dr. Hopkins was occupying and controlling suite 507 at the time of Mr. Hernandezs needle stabs. The jury heard Dr. Hopkinss response to requests for admission in which he admitted he was the one who permitted and allowed Dr. Jones to occupy space in suite 507, suggesting Dr. Hopkins retained control over the use of the premises. While some testimony could support the inference that Dr. Jones replaced Dr. Hopkins in suite 507, other credible testimony supports the conclusion that at the time of his accident, Dr. Hopkins was the tenant in possession occupying suite 507 simultaneous with Dr. Jones. Mr. Hernandez testified that two doctors, one older and another younger, were working inside suite 507 in January 2002. Dr. Jones stated in an interrogatory response that he occupied space in Suite C507, leading to the inference that he did not take over the entire suite and that Dr. Hopkins was still in possession. The Estate cites Dr. Joness statement in response to interrogatories in September 2003 that his place of employment was suite 507; but that is not evidence that at the time of Mr. Hernandezs injuries, Dr. Hopkins was not in possession and control.[7] Nor is the statement of plaintiffs expert in HIV disease and causation that he was told that Dr. Jones took over for Dr. Hopkins substantial evidence, particularly where the record indicates that he took over only space in suite 507, not the entire suite. In sum, ample testimony supports the jurys finding that Dr. Jones had permission to use some but not all of the suite. The fact that Dr. Hopkins was no longer practicing medicine during this time is of no legal importance given his status as the only legal lessee and his continued presence in the suite.
More important, it was undisputed Dr. Hopkins was receiving mail at suite 507, came there to pick up his mail, admitted receiving Mr. Klugmans January 2002 letter addressed to him there,[8] and had his business cards on display in the suite. Indeed, Dr. Hopkins did not relinquish his possession and control until nearly a year after Mr. Hernandezs accidents when he actually notified Safco that he was terminating his lease and closing his offices. Taken together, the evidence supports the jurys finding that Dr. Hopkins possessed and controlled suite 507 at the time of Mr. Hernandezs accidents.[9]
Accordingly, the Estates contention is meritless that [t]he issue here is whether a landowner (or master lessor) not in possession of its property owes a duty of care to his tenant or his tenants invitees concerning a dangerous condition on the premises which comes into existence after the tenant has taken possession. (First italics added.) The fallacy of the Estates argument is apparent for two reasons. First, the evidence does not support the inference that Dr. Hopkins was a master lessor. The Estate cites to no evidence of a sublease other than a quotation from Safcos attorneys opening statement before the jury and a legal conclusion made in its trial brief which the jury never saw. (See fn. 7, supra.) Safco had no knowledge that Dr. Jones was in suite 507, much less as a sublessee. As plaintiffs observe, the Estate cites to no authority for the proposition that merely by abandoning a leasehold to another not legally authorized, without notice to the landlord, a tenants status as a lessee ‑‑ and his legal duties associated with that status -- terminate. Second, other evidence sufficiently supports the conclusion, as analyzed supra, that Dr. Hopkins was in possession of his property at the time of the accidents.
Turning to the scope of the duty under these circumstances, [t]he relevant question is not mere ownership, but whether the possessor has maintained the property in a reasonably safe condition. (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1335, citing Alcaraz, supra, 14 Cal.4th at p. 1156.) The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . . [Citation.] This requires persons to maintain land in their possession and control in a reasonably safe condition. [Citations.] [Citation.] [] This duty to maintain land in ones possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control. (Alcaraz, supra, at p. 1156, italics added.)
Whether one owes a duty in a particular case depends upon consideration of numerous factors: the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to the defendants conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 885-886.)
Applying these factors here, we conclude that where the evidence supports the jurys finding Dr. Hopkins was the tenant in possession and control of suite 507, Dr. Hopkins owed a duty to exercise reasonable care in suite 507 for persons foreseeably injured by a dangerous condition on that property to take reasonable steps to prevent injury. (Alcaraz, supra, 14 Cal.4th at p. 1162.) He was required to act as a reasonable man in the management of his suite and to maintain his suite in a reasonably safe condition. (Id. at p. 1156.) He had to comply with the medical waste disposal procedures by rectifying the improper disposal of needles. It was foreseeable the illegal disposal of biohazardous waste would harm someone. That is a main purpose behind Health and Safety Code sections 118285 [see fn. 1, ante] and 118280 [setting forth the requirements for containerizing and storing biohazardous waste]. The harm is most certainly critical, as Mr. Hernandez contracted a deadly disease. The really foul stench and plastic bags that were ripped and had blood squirting out on the floor, certainly constituted a dangerous condition that was extant before Mr. Hernandezs first injury, and were blatant signs of mishandling. Furthermore, Mr. Klugmans letter in January 2002 about Mr. Hernandezs first accident put Dr. Hopkins on direct notice of hazards in the suite. Dr. Hopkinss failure to require proper disposal of biomedical waste was closely connected to the injury Mr. Hernandez suffered. Moral blame attached to Dr. Hopkinss conduct where he was a physician charged with knowledge of the duties required of him by statute and medical ethics. The risk of harm to the general public clearly outweighed the presence of a particular tenant or suite-mate on the premises. Imposition of a duty under these circumstances was a relatively small burden to impose on defendants, especially where the Health and Safety Code already imposes it. Finally, the risk posed here was insurable.
Cases cited by the Estate, Uccello v. Laudenslayer, supra, 44 Cal.App.3d at page 510; Martinez v. Bank of America (2000) 82 Cal.App.4th 883 at page 887; and Leakes v. Shamoun (1986) 187 Cal.App.3d 772 at page 776, are inapposite for the simple reason that they involved landlords who did not occupy the premises and did not have the right to enter and inspect the leased premises for dangerous conditions. Here, Dr. Hopkins was not a landlord out of possession and so he had an affirmative duty to maintain land in [his] possession and control in a reasonably safe condition. [Citations.] (Alcaraz, supra, 14 Cal.4th at p. 1156.) The Estate quotes Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at page 780 for the proposition that defendants are not liable if they did not have the power, opportunity and ability to eliminate the danger. However, as noted, the Supreme Court has explained that the duty to maintain property in ones possession exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control. (Alcaraz, supra, at p. 1156, italics added.) Such a rule applies in this case where sufficient evidence supports the jurys finding that Dr. Hopkins was the possessor and controlled suite 507, and therefore did have the power and opportunity to eliminate the danger.
In sum, sufficient evidence supports the jurys conclusion that Dr. Hopkins breached his standard of care by failing to correct the dangerous condition. The testimony supported the inference that Dr. Hopkins knew or should have known of unsafe conditions in suite 507 both because of the foul stench and bags leaking onto the floor and because of the notice Dr. Hopkins admitted receiving from Mr. Klugman. Despite this knowledge, Dr. Hopkins neither corrected the problem nor advised Safco that he was no longer in control of suite 507 and in a position to correct the problem. The evidence supports the jurys finding of negligence here.
b. There was sufficient evidence that Dr. Hopkinss negligence was a substantial factor in bringing about plaintiffs injuries
[T]o demonstrate actual or legal causation, the plaintiff must show that the defendants act or omission was a substantial factor in bringing about the injury. [Citations.] (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.) In other words, plaintiff must show some substantial link or nexus between omission and injury. Plaintiff must establish, by nonspeculative evidence, some actual causal link between the plaintiffs injury and the defendants [breach of duty]. (Ibid.) A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. [Citation.] (Id. at pp. 775-776.)
It is enough that [plaintiff] introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. . . . [] . . . Conduct can be considered a substantial factor in bringing about harm if it has created a force or series of forces which are in continuous and active operation up to the time of the harm [citation], or stated another way, the effects of the actors negligent conduct actively and continuously operate to bring about harm to another [citation]. [Citation.] (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314.)
Here, the Estates contention to the contrary, the evidence of causation was substantial. Plaintiffs expert, Dr. Galpin, testified to a medical certainty that it was more likely than not that Mr. Hernandez contracted the HIV virus from either or both needle jabs. Dr. Galpin described the reasons for his conclusions. Mr. Hernandezs lack of risk factors was especially telling. Dr. Galpin explained that Mr. Hernandezs T-cell count was low when he was diagnosed, and he had a modest elevation of viral load, all of which indicated that he had contracted HIV recently. There are lots of people that get sick right away. Although defendants expert, Dr. Daar, opined to the contrary, Dr. Galpins testimony provided substantial evidence to support the jurys causation finding.
The Estate goes to great lengths to demonstrate that the only accident for which Dr. Hopkins could be held responsible was the second because it occurred after Dr. Hopkins had actual notice from Mr. Klugmans letter of the hazardous conditions in the suite. The Estate argues that there is no evidence that a reasonable inspection of the suite, as would be required of Dr. Hopkins, would have revealed infected needles in the regular trash. Thus, the Estate reasons, because there is no testimony identifying which needle puncture actually gave Mr. Hernandez HIV, the causation evidence is insufficient.
The contention misses the point.[10] As analyzed, Dr. Hopkinss duty was that of the tenant and possessor of the suite, not that of a landlord. Dr. Hopkinss duty to maintain suite 507 existed long before the first puncture; it existed since 1986. There was patent evidence -- odor and medical trash -- that biohazardous waste was improperly thrown away creating a dangerous condition. As for the second accident, even the Estate concedes that Dr. Hopkins had actual notice of the conditions of the premises before Mr. Hernandez was stabbed in February 2002. Therefore, the jury could reasonably conclude from Dr. Hopkinss failure to notice and remedy the condition of the suite was a substantial factor in both of Mr.
Hernandezs accidents. There being substantial evidence that Dr. Hopkins knew or should have known of the hazardous condition before either needle puncture, it is of no moment that plaintiffs expert would not pinpoint which accident actually transmitted HIV to Mr. Hernandez.
The Estate contends [t]here is no evidence that Dr. Hopkinss failure to respond to the January 2002 needle stick caused plaintiffs injury. To the contrary, Dr. Hopkinss failure to take steps to correct the disposal practices allowed the dangerous condition to persist, which nearly guaranteed that someone would come in contact with human blood and needles. The evidence of causation was ample.
2. The court did not commit prejudicial evidentiary error
a. The trial court did not err in barring Dr. Jones from testifying
The Estate contends that the trial court erred in barring Dr. Jones from testifying.
Plaintiffs named Dr. Jones as a defendant in their complaint. Dr. Jones answered the complaint by generally denying the allegations and asserting as an affirmative defense that plaintiffs injuries were proximately caused by the negligence of third parties. Despite plaintiffs multiple motions to compel, Dr. Jones repeatedly failed to appear for properly noticed depositions and refused to answer interrogatories. Dr. Hopkins did not attempt to serve discovery on or depose Dr. Jones, despite defense counsels statement that [a]ll the information is with Dr. Jones. . . . We need to get the information from him. The Estate never filed a cross-complaint against Dr. Jones.
In December 2003, Dr. Jones filed for bankruptcy protection triggering an automatic stay. In January 2004, plaintiffs announced they no longer needed Dr. Joness testimony to prove their case and were prepared to dismiss Dr. Jones from
the action. Counsel for defendant Safco indicated he still wanted to take Dr. Joness deposition and intended to apply to the bankruptcy court to lift the stay. Although defense counsel join[ed] in everything thats being said regarding Dr. Jones, his testimony is essential, defense counsel never thereafter attempted to depose Dr. Jones.
The Estate included Dr. Joness name on its witness list for trial as a percipient witness. Plaintiffs moved in limine to exclude Dr. Joness testimony arguing it was irrelevant because no deposition of Dr. Jones was ever taken, and his testimonys probative value would be outweighed by its prejudicial effect. Dr. Joness testimony about who created or maintained the hazard in suite C507 was irrelevant; the only relevant evidence was that the hazard existed there and that Dr. Hopkins knew or should have known about it and failed to remedy the situation.
The court ruled where a previous motion to compel Dr. Joness deposition had been denied because of the automatic stay, that Dr. Jones could not testify at trial: [t]hat wouldnt be fair . . . . The court also ruled, in regards to using documents against Dr. Jones for purposes of apportionment, the parties will be allowed to do that and use those. Those were clearly obtained before the stay and you can do that. The court later reversed that ruling in limine, ruling instead that Dr. Joness answers to interrogatories would be excluded if Dr. Jones had refused to appear prior to filing for bankruptcy protection.[11]
The Estate argues that the bankruptcy stay did not prevent plaintiffs from seeking discovery from Dr. Jones in his capacity as a witness and it was not required to depose Dr. Jones before placing him on the witness list. Nonetheless,
the Estate argues, the trial court erroneously punished the Hopkins Estate by barring it from calling Dr. Jones as a witness merely because plaintiffs failed to take the proper steps needed to secure Dr. Jones deposition testimony prior to trial.
Plaintiffs did take all of the steps necessary to secure Dr. Joness testimony. Nine months before trial, plaintiffs decided they did not need Dr. Joness testimony to prove their case and were even prepared to dismiss Dr. Jones from the action. It became the Estates obligation to secure Dr. Joness testimony. But, the Estate never even sought to lift the automatic stay. Even if Dr. Jones could have testified at trial in spite of the bankruptcy stay, his repeated failure to appear for deposition or to respond to discovery raises questions about whether he would have appeared at trial.
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352.) However, A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means . . . . (Evid. Code, 354, subd. (a), italics added.)
The Estate was aware that no one knew what Dr. Jones would say on the witness stand. Nonetheless, it contends on appeal that the relevant testimony from Dr. Jones would have been that (1) he alone created the dangerous condition, and (2) he was an actual subtenant who occupied and controlled the suite.
We conclude that any error in barring Dr. Jones from testifying was harmless. (Evid. Code, 354, subd. (a).) The Estate made no offer of proof about the testimony it expected from Dr. Jones. The only indication of Dr. Joness position was his answer to the complaint in which he averred that plaintiffs injuries were caused by another. Further, the jury heard that Dr. Hopkins did not use needles and that he was not seeing patients at the time of Mr. Hernandezs accident. Thus, Dr. Hopkinss liability was based on his status as lessee and controller of the premises, not as the creator of the dangerous condition. Moreover, regardless of whether Dr. Jones was a sublessee who occupied and controlled space in the suite, there was overwhelming testimony supporting the inference that Dr. Hopkins leased, occupied, and controlled suite 507 at the time Mr. Hernandez was injured with the result that Dr. Joness status as sublessee of, in Dr. Joness words, space in suite 507 would not have altered Dr. Hopkinss duties. We are not persuaded by the Estates claim that the jurys assignment of zero liability to Dr. Jones was the result of speculation that Dr. Jones did not exist at all. It is equally likely that the jury, having concluded that Dr. Hopkins, as the only one legally in control of the premises, was responsible for failing to make Dr. Jones properly dispose of the medical waste. In short, even if the trial court abused its discretion in precluding Dr. Jones from testifying, and even conceding the Estate were correct that it was not required to depose Dr. Jones before placing him on its witness list, the trial courts ruling was harmless.[12]
b. The trial court properly ruled thatMICRA was inapplicable to this case and for that reason barred collateral source evidence under Civil Code section 3333.2
In denying Dr. Hopkinss motion to strike prayers for punitive damages in the complaint based on Code of Civil Procedure section 425.13 (concerning punitive damages claims in negligence actions against health care providers), the court stated, this action does not involve medical malpractice. The court was correct. This case involved causes of action for premises liability in violation of statute, where medical services were never provided by defendants to Mr. Hernandez or anyone connected with Mr. Hernandez.
MICRA applies to any action for injury against a health care provider based on professional negligence . . . . (Civ. Code, 3333.2, subd. (a), italics added.) Professional negligence is defined in the statute as a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital. (Civ. Code, 3333.2, subd. (c)(2), italics added.) [A]ll claims of negligence against health care providers are not subject to [MICRA limitations] but only those for professional negligence. [Citation.] An action for damages arises out of the professional negligence of a health care provider if the injury is directly related to the professional services provided by the health care provider. [Citation.] The test of whether a health care providers negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed. [Citation.] (Williams v. Superior Court (1994) 30 Cal.App.4th 318, 324-325.) [T]he focus is . . . on whether . . . the health care provider charged with negligence was acting in the capacity of a health care provider at the time of the allegedly tortious acts. (Johnson v. Superior Court (2002) 101 Cal.App.4th 869, 886 [test for deciding whether plaintiff must comply with procedural requirements of Code of Civil Procedure section 425.13 to claim punitive damages in a medical malpractice action].) MICRA applies to any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence. (Williams, supra, at p. 324.)
Plaintiffs lawsuit here was not based on professional negligence because it was not based on Dr. Hopkinss negligent act or omission in the rendering of professional services. (Civ. Code, 3333.2, subd. (c)(2), italics added.) Mr. Hernandezs injury is unrelated to Dr. Hopkinss conduct in providing health care where Dr. Hopkins was not rendering services to Mr. Hernandez or his family members for which he was licensed at any time, and Mr. Hernandezs injury was not directly related to the professional services provided by the health care provider. (Williams v. Superior Court, supra, 30 Cal.App.4th at p. 324.) In fact, Dr. Hopkins averred that he was not providing medical services to anyone at the time of Mr. Hernandezs injury.
Rather, this lawsuit is based on premises liability. Plaintiffs complaint alleges negligence per se because the storage and disposal of the biohazardous and medical waste violated Health and Safety Code sections 118285 and 118280 and Mr. Hernandez was in the class of people these statutes were designed to protect. The complaint also alleges that Mr. Hernandez was injured on the premises because Safco, Dr. Hopkins, and Dr. Jones negligently owned, maintained, managed, and operated suite 507. Dr. Hopkinss responsibility arose from his capacity as lessee and occupier of suite 507. Moreover, the disposal of hazardous waste could have been performed by anyone and did not require a license as a health care provider or the exercise of professional expertise and judgment. (Compare Johnson v. Superior Court, supra, 101 Cal.App.4th at p. 886 [collection, processing, and testing of sperm for use in artificial insemination requires the exercise of professional expertise and professional judgment].) It was failure to correct the hazardous condition of the property, not the rendition of medical services, that caused Mr. Hernandezs injuries.
Cases cited by Dr. Hopkins are inapposite because they all involved situations where medical services were being provided by a licensed health care provider to someone connected to the plaintiffs. Hedlund v. Superior Court (1983) 34 Cal.3d 695, held that a complaint stated a cause of action for professional negligence where the allegations were that two psychologists failed to warn the plaintiff of threats against her by their patient. The Supreme Court explained that diagnosis and prediction of a patients dangerousness is an essential element of a cause of action for failure to warn and the duty to warn. A psychologists duty to warn is inextricably interwoven with a therapists professional and diagnostic responsibilities. (Id. at p. 703.) The omission to act occurred during the time that the therapists were rendering professional services to the patient. (Ibid.) Here, Dr. Hopkins was never providing professional services to anyone who was foreseeably connected to Mr. Hernandez or his family.
In Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, MICRA was applicable to services for which the health care provider was licensed. Bell held that competent selection and review of medical staff applicants is a professional service that the defendant hospital was licensed to provide. Negligent failure to review the applicant surgeon proximately caused the plaintiffs sons death. (Id. at pp. 1050 & 1052.)
Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797 held that taking x-rays is the rendering of professional services. The allegations that the plaintiffs injuries were sustained when the plaintiff fell off the x-ray table stated a cause of action for professional negligence. (See also, Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 56 [professional duty of hospital is to provide a safe environment within which diagnosis, treatment, and recovery can be carried out; unsafe condition that causes drugged patient to fall out of bed at night is breach of hospitals duty].) Murillo contrasted situations that did not amount to rendering professional services: No reasonable person would suggest that professional malpractice was the cause of injury to a patient from a collapsing chair in a doctors office . . . or to a hospital patient from a chandelier falling onto his bed. [Citation.] (Ibid.) Unlike Bellamy and Murillo, no one in suite 507 was ever providing medical services to Mr. Hernandez, or anyone related to him, and so this case is more akin to the collapsing chair or falling chandelier.
The Estate relies on Williams v. Superior Court, supra, 30 Cal.App.4th 318 where the plaintiff, a nonemployee phlebotomist, was jabbed with a needle while drawing blood from a violent patient at a rehabilitation institute and two days later tested positive for HIV. The plaintiff sued the institute alleging it was aware of the patients violent tendencies and failed to warn her. (Id. at pp. 321-322.) Williams held that MICRA applied. It reasoned that While lawsuits unrelated to the practitioners conduct in providing health care were not intended to be included [in MICRAs scope] [citation], it would defeat the purpose of the legislation if claims arising out of the practitioners professional negligence were excluded from coverage simply because the injured party was not a patient. We therefore conclude [MICRA] applies to any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence. (Id. at p. 324, italics added.) The test of whether a health care providers negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed. [Citation.] (Id. at pp. 324-325.) The allegations of the complaint in Williams were that the patient was under the control, supervision, and custody of the institute which knew of his psychological condition and health and failed to warn her even by posting a notice in his chart. Such allegations, Williams held, were directly related to the manner in which the institute rendered professional services with the result that MICRA applied. (Id. at p. 326.) Unlike Williams, however, the storage of biohazardous waste in proper containers and maintenance of commercial premises in a reasonably safe condition are common knowledge and do not require the skill or license of a medical practitioner. Thus, unlike Williams, the allegations of plaintiffs complaint here are unrelated to the manner in which Dr. Hopkins rendered professional services with the result that MICRA does not apply.
Given that MICRA is inapplicable, the Estates contention fails that the trial court erred in barring collateral source evidence. (Civ. Code, 3333.1, subd. (a).) For the same reason, we reject the Estates additional contention that the non‑economic damages awarded in this case were excessive because the trial court refused to reduce them to the MICRA cap found in section 3333.2, subdivision (b).
3. The trial court did not commit reversible instructional error
a. The premises liability instruction was proper
The Estate contends that the premises liability instruction was erroneous because it allowed the jury to find the Hopkins Estate liable for a condition that was beyond Dr. Hopkinss control. The Estate observes that where the phrase an owner, lessee, or occupier or one who controls the property is in the disjunctive, the court instructed the jury that owners and lessors were liable for dangerous conditions even if they retained no control over property possessed by a lessee.
However, we have already explained that the instructions phrase own, possess, orcontrol is stated in the alternative. [Citation.] A defendant need not own, possess and control property in order to be held liable; control aloneis sufficient. (Alcaraz, supra, 14 Cal.4th at p. 1162, fourth italics added.) The problem with the Estates contention, of course, is that it assumes that Dr. Hopkins did not have control or possession. As already analyzed (ante), sufficient evidence supported the finding that Dr. Hopkins leased, possessed and controlled suite 507, with the result the instruction was appropriate and the trial court properly overruled the Estates objection.
b. The negligence per se instruction was not erroneous
Next, the Estate contends that the trial court erred in instructing the jury that Dr. Hopkins alone was responsible for complying with Health and Safety Code requirements for the disposal of medical waste.
The court overruled the Estates objections and, based on the evidence presented, limited application of the negligence per se cause of action to Dr. Hopkins only. The court instructed the jury on the disposal requirements of the Health and Safety Code and then instructed: If you decide: [] 1. That Charles W. Hopkins, M.D. violated this law, and [] 2. That the violation was a substantial factor in bringing about the harm, then you must find that Charles W. Hopkins, M.D. was negligent unless you also find that the violation was excused. The Estate contends that this instruction was argumentative because it fortified plaintiffs erroneous position that Dr. Hopkins [only -- and not others such as Safco or Dr. Jones --] was responsible for . . . unsafe condition[s] existing on the premises leased by Dr. Jones.
However, plaintiffs witnesses testified that tenants were responsible for properly disposing of medical waste and the evidence was that Dr. Hopkins was a tenant. There was no error.
c. The error in giving the causation instruction was not prejudicial
The Estate challenges the instruction the trial court actually gave with respect to causation. The court agreed to instruct that [c]ause must be proven within a reasonable medical probability . . . . Mere possibility is insufficient to establish cause. (Italics added.) When it actually instructed the jury, the court mistakenly stated: Cause may be proven within a reasonable medical probability . . . . (Italics added.)
The error was not prejudicial. The jury was given the instructions in written form for its use during deliberations and as noted, the written version contained the required must. [W]hen there is an inconsistency between the trial courts oral and written instructions, it is assumed that the jury followed the written instructions. [Citation.] (People v. Huggins (2006) 38 Cal.4th 175, 260.) Jurors are presumed to understand and follow the courts instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Indeed, no one, including counsel for the Estate, caught the error even though the Estates attorney was vigilant enough to point out other errors in the courts reading of instructions. Finally, we are not persuaded by the Estates argument that the evidence of causation was (at most) extremely weak with the result that the instructions failure to inform the jury of plaintiffs high burden was prejudicial. As explained ante, plaintiffs evidence was sufficient to support causation. Plaintiffs expert, Dr. Galpin, testified to a medical certainty that it was more likely than not that Mr. Hernandez contracted the HIV virus from either one or both needle jabs occurring in suite 507. (Italics added.) That the defense did all it could to impeach this testimony and to present conflicting evidence does not eliminate evidence in the record to support the required finding.
4. Juror misconduct did not prejudice the defense
The Estate contends that a new trial is required because of juror misconduct in that the jury was influenced by the personal experience of Juror R. S.
Jurors are not supposed to receive or communicate to fellow jurors information from sources outside the evidence presented in court. [Citation.] If they do, they are guilty of misconduct. [Citation.] (English v. Lin (1994) 26 Cal.App.4th 1358, 1363-1364.) However, [j]urors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them. (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742.)
It is also well settled that a presumption of prejudice arises from any juror misconduct. . . . However, the presumption may be rebutted by proof that no prejudice actually resulted. [Citation.] A denial of a motion for new trial grounded on jury misconduct implies a determination by the trial judge that the misconduct did not result in prejudice. [Citation.] (English v. Lin, supra, 26 Cal.App.4th at p. 1364.)
On appeal from denial of a motion for new trial on grounds of juror misconduct, the appellate court, has a constitutional obligation [citation] to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. [Citations.] [] While a presumption of prejudice arises when there has been any juror misconduct, the presumption may be rebutted by evidence that no prejudice resulted. [Citation.] (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 817-818, italics added.)
In connection with its new trial motion, the Estate submitt
