Bell v. UCLAHarborMedicalCenter

Filed 7/3/07 Bell v. UCLA Harbor Medical Center CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. William P. Barry, Judge. Affirmed.

Schuler & Brown, Jack M. Schuler, Linda Diane Anderson; Greines, Martin, Stein & Richland, Martin Stein and Carolyn Oill for Defendant and Appellant.

King & Ferlauto, Thomas M. Ferlauto; Murphy, Rosen & Cohen and Philip Kent Cohen for Plaintiff and Respondent.

* * * * * *

UCLA Harbor Medical Center (Harbor) appeals a judgment entered against it after a jury awarded Patrick Bell (Bell) $150,000 on his medical malpractice claim. During voir dire, Harbors peremptory challenge of a juror was disallowed because it was impermissibly based on race. Harbor contends that the trial courts reseating the challenged juror was reversible error. Harbor also contends that the verdict was not supported by substantial evidence, that its motion for a new trial based on attorney misconduct should have been granted and that the jury was improperly instructed on the willful suppression of evidence. We find no merit to these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to the substantial evidence standard of review discussed post, we state the facts in the manner most favorable to the judgment, resolving evidentiary conflicts in its favor. (Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1383, fn. 1.)

The Medical Treatment

On August 24, 2003 28-year-old Bell, an African-American, had an emergency laparoscopic appendectomy at Harbor. His unruptured appendix was successfully removed. On the morning of August 26, Bells nurses characterized his postoperative pain as severe or level eight, and he was given morphine. Bells family asked that he be kept in the hospital another night due to his pain, but he was discharged in the afternoon of August 26 with a pain level of three or four. Bell returned to the Harbor emergency room at 8:00 or 9:00 p.m. that night complaining of intense pain and bloating. At 3:00 a.m. on the morning of August 27 he was diagnosed with a small bowel obstruction and readmitted. At 6:00 a.m. a CAT scan was performed. The results were not reviewed for at least six hours and showed an intestinal obstruction, distension of the bowel and free air in the upper abdomen. Harbor continued to observe Bells condition until August 29 when a second, conventional surgery was performed. The surgery revealed a severely distended bowel, 1.7 liters of blood that had leaked into Bells abdomen, a perforated ileum, a looped intestine and scar tissue from the first surgery that was obstructing the bowel. Following the surgery, the incision could not be closed due to the inflammation, so Bells abdomen was left open and covered with sterile bandages. To prevent Bell from scratching at the incision, he was restrained and a coma was induced and continued for six weeks. During that time, he experienced severe infection, septic shock and respiratory failure. His abdominal cavity was periodically washed out with antibacterial solutions; he had a tracheotomy, was put on a ventilator and an arterial line inserted in his wrist cut off circulation to two of his fingers which developed gangrene.

Bell was discharged on October 14, and he sued Harbor for medical malpractice.

The Trial

The initial trial in October 2005 ended in a mistrial when it was discovered that the Harbor medical records pertaining to Bells first admission and discharge had not been provided during pretrial discovery for Bells expert witnesss review. Bells expert, Dr. Hugh Raphael, was again deposed after reviewing the records and trial was again commenced on November 28, 2005.

Voir Dire

Harbor exercised its first peremptory challenge against the only black male venire man. Outside the jurys presence, Bell moved to disallow the peremptory challenge based on Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part on other grounds by Johnson v. California (2005) 545 U.S. 162 (collectively Batson/Wheeler) on the grounds that it was impermissibly based on race. Harbor stated that its challenge was based on the jurors unemployment and disability claim. The court found that Bell failed to make a prima facie case for his motion.

Harbor then peremptorily challenged one of three black women seated on the panel, and then it challenged a second black woman, Juror No. 9, which prompted another Batson/Wheeler motion at side bar. The court first instructed Juror No. 9 to return to the jury room, but then asked her to remain in the courtroom. Harbor defended its peremptory challenge as follows: Number 9, a little less clear on number 9. First of all, shes a city employee.^[1]. . . my practice is to eliminate all city employees when I represent a county because they harbor ill-will toward their employer, thats number one. But the main reason, shes just looking at me, giving me dirty looks. Maybe Im just imagining it. Shes not happy with me. And its like Mr. Cohen said, sometimes its like speed dating, you have to form the impressions of people. And shesIm definitely getting a negative feeling from her. . . . I excused number 9 based upon the fact that she is a city worker and the fact that while shes looking at me while the case is being described, shes looking at me and giving me looks that to me that indicated that she was biased and against the defense which I intended to explore. I ran out of time. Perhaps I lost track of the time, but that was definitely where I was going next. The court found that Harbors reasons for excusing the juror were pretextual.

Bell argued the juror should be reseated otherwise Harbor would achieve the result it wanted through improper means. Harbor argued that the juror would certainly now be biased against it. The juror was reseated. During the voir dire of potential alternates, a prospective juror, who was a lawyer, stated: I felt that there was a pattern of excluding African-American jurors that I thought perhaps might have been the reason why one of the jurors was put back in the box. Harbors counsel then stated to the court: It just underscored something that I want to bring to your attention and this gentleman has obviously expressed what my concern is about putting this person back in the box, that because of that action that theres a perception now somehow theres a racial bias here and this fellow has just said. Underscores what my concern is.

Before trial commenced the next morning, the court again considered the Batson/Wheeler motion and explained: I had in mind and so find that under the circumstances a fair and reasonable inference to the Court that the defendant was in fact trying to get the entire panel excused or was trying to tamper with composition of the venire . . . . The trial proceeded with the reseated juror.

Bells Percipient Witnesses

Bells aunt, mother and girlfriend testified that Bell was in severe pain prior to his initial discharge from Harbor. His aunt testified that she complained to the doctors about his pain and asked that he be allowed to stay another day. Bells witnesses also testified that his pain and bloating after the appendectomy continued to get worse until the second surgery. They described his being restrained after the surgery and then being placed in a coma for six weeks during which two fingers on his right hand turn black like charcoal.

Bells Expert

Dr. Raphael opined that Harbor fell below the applicable standard of care in two regards: Bell should not have been discharged on August 26given his level of pain and the August 29 surgery should have occurred earlier. Both acts contributed to a delay in arresting an infectious or inflammatory process that prevented the closure of Bells incision leading to his restraint after surgery, induced coma, respiratory failure and damage to his fingers due to gangrene.

Dr. Raphael testified that Bell experienced an abnormal degree of postoperative pain. A normal level of pain for a laparoscopic appendectomy, performed through three small entry points that required only band-aids, is zero to one. But nurses notations on Bells chart showed that on August 25 Bell was still in pain. Eight out of 10. . . . and still experienced pain of 8 on August 26. After he was medicated, Bells pain was relieved to three or four at the time of his discharge on August 26. But because the pain was masked by medication, it was inappropriate to conclude that Bell had improved sufficiently for discharge. Moreover, Dr. Raphael opined it was not reasonable to discharge Bell on August 26, even if his pain, unmasked by medication, were three or four. The level of pain was a red flag that should have alerted Harbor to the fact that there was a postoperative problem.

Upon returning to the hospital five or six hours after discharge due to his pain and bloating, Bell stayed in the emergency room from 9:00 p.m. to 3:00 a.m. when he was finally readmitted. A CAT scan was not performed until 6:00 a.m. on August 27 and it was not reviewed until at least six hours later. The CAT scan showed a distended colon and free air in the body cavity. Dr. Raphael testified that the free air denotes a hole somewhere in the gastrointestinal track. He also stated that the CAT scan showed distension of the colon as well as the small bowel, which tells me this is . . . . a paralysis of the bowel rather than an actual mechanical or adhesive obstruction. Dr. Raphael called it bad medicine to not to have looked at the CAT scan for many hours. He opined that to meet the standard of care Harbor should have operated on Bell again, either conventionally or laparoscopically, within 12 hours of the CAT scan which would have been late on August 27, rather than waiting until the morning of August 29.

Based on his review of the report of the second surgery, Dr. Raphael noted the leakage of 1.7 liters of blood from the first surgery and the discovery of a small perforation of the ileum, or lower portion of the small intestine. He opined that the leakage of blood and intestinal fluids caused peritonitis or inflammation of the lining of the abdominal cavity. It also caused the bowel to stop functioning and expand like a balloon. He testified that the peritonitis worsened over time and became life-threatening. The inflammation was so extreme that Bells abdomen could not be shut without endangering his life. The need to leave the incision open led to the use of restraints, an induced coma, periodic antibacterial washouts, a tracheotomy, the need for a ventilator and gangrene in the tips of two fingers.

Dr. Raphael opined that the 12 hours between Bells discharge on August 26 and his readmission contributed to his damages and suffering. Had he not been discharged, an investigation of his postoperative pain would have occurred earlier. Bell then suffered further damage due to the negligent delay in the second surgery to investigate the cause of his pain.

Harbor attempted to impeach Dr. Raphael with the fact that he originally formed his opinions without having first reviewed the medical records pertaining to Bells initial hospitalization and discharge. Dr. Raphael explained that those records were not originally available to him, but that his later review of them did not change his opinions. He admitted that internal bleeding after a surgery such as Bells is not necessarily due to negligence and that a patient such as Bell can develop an infection without bowel perforation. He testified that despite the fact that Bells temperature, heart rate and white cell count were acceptable before discharge, his abnormal level of pain was enough to indicate a postoperative problem that should have kept him in the hospital. Dr. Raphael acknowledged that Bell would have needed a later surgical procedure regardless of whether there was negligence. But he nevertheless criticized the timing of the second surgery, stating that an earlier surgery would have saved many complications.

Harbors Doctor

Dr. Brian Randall Smith briefly assisted in Bells appendectomy. He was the primary doctor responsible for Bells care at the time of the first discharge, and testified that the discharge was appropriate because Bells pain was under reasonable control, he was eating and had bowel activity and his vital signs were normal. Dr. Smith also participated in the second surgery. He testified that prior to that point, a tube had been inserted down Bells nose to aspirate fluid from his intestine and he was given no food as a conservative therapy to treat a bowel obstruction. When that failed, the second surgery was performed to determine the cause of the obstruction. It revealed a considerable amount of old blood in the abdominal cavity and considerable inflammation, which were consistent with Bells earlier surgery. There was no sign of peritonitis or infection. To examine the small intestine for obstructions, a loop of it was lifted off of the base of the appendix, revealing a small sealed, or nonleaking, pinhole. Because there was no indication of any spillage from the intestine, the surgeons concluded that the hole was caused during the second surgery by their separating loops of the bowel that had adhered, which is a common result of inflammation.

Harbors Experts

Dr. David B. Sievers testified as a surgical expert. He stated that the usual risks of an appendectomy include hemorrhage, perforation and adhesion, that the lack of rigidity of Bells abdomen indicated there was no intestinal spillage, and that the existence of bowel sounds was inconsistent with infection or peritonitis. Additionally Bells white blood cell count went down after the appendectomy and was stable indicating no peritonitis. He opined that Bells discharge on August 26 fell within the standard of care.

Dr. Sievers stated that Harbors observing Bell for fifty-five hours while they tried to relieve the bowel obstruction was routine treatment. The reports of the second surgery revealed only a looped bowel with adhesions and no leakage of bowel contents into the abdomen and no signs of peritonitis. He opined that Bells postoperative pain was caused by the 1.7 liters of old blood found in his abdomen, which posed no further threat because the bleeding had stopped. He opined that the inflammation of Bells intestines was due to abdominal compartment syndrome, which is a slowing of the blood flow to the intestines when the abdomen is distended. Dr. Sievers opined that Harbors treatment of Bell fell within the standard of care.

Dr. Richard Ofstein testified as a radiology expert and explained that Bells CAT scan proved there was no perforation because the contrast dye passed through the ileum without leaking. Dr. Marcia Cornford testified with respect to Bells laboratory results. Dr. James Leo, a critical care specialist, testified that Bells primary problem after the second surgery was a very severe infection that led to respiratory failure, necessitating a mechanical ventilator, and septic shock, characterized by difficulty maintaining a normal blood pressure. Bells lungs developed holes, leaked and collapsed. A drainage tube was inserted through his chest wall to reinflate the lungs. Due to the discomfort of mechanical ventilation, Bell was medicated which would normally impede his memory of the experience. A tracheotomy was performed to protect Bells vocal cords from damage from the mechanical ventilator. Bell still had the tracheotomy ten days after his discharge. Dr. Leo testified that the formation of gangrene in Bells fingertips was an inherent risk of an arterial line and not the result of negligence.

Harbors Counsel

Harbor called one of its attorneys, Linda Anderson, who testified that Dr. Raphael originally drew his conclusions with respect to causation and damages without having reviewed the records pertaining to Bells first hospitalization. Counsel testified that after Dr. Raphaels first deposition, in which he testified that the disputed records were not available, she wrote a letter to opposing counsel informing them that Mr. Schulers firm possessed a copy of the medical records that matched the hospitals files and offering to make their copy available for Dr. Raphaels review.

The jury returned a verdict of $150,000 in favor of Bell. Harbor unsuccessfully moved for a new trial. Judgment was entered on December 27, 2005, and Harbor appealed.

DISCUSSION

I. Contentions on Appeal

Harbor contends that the trial court erred in reseating Juror No. 9 after granting Bells Batson/Wheeler motion. Doing so, it argues, allowed a biased juror to sit in judgment when there were less prejudicial alternatives available to the trial court such as dismissing the entire venire or merely dismissing Juror No. 9 while seating another. Harbor also argues that the verdict was unsupported by substantial evidence. Harbor assigns error to the trial courts giving an instruction on the willful suppression of evidence. Finally, Harbor contends that the trial court erred in denying its motion for a new trial based on counsels misconduct during closing argument.

II. The Court Did Not Abuse Its Discretion in Reseating the Juror

We review the trial courts reseating of the challenged juror for an abuse of discretion. (People v. Willis (2002) 27 Cal.4th 811, 814 (Willis).)

A party may not exercise a peremptory challenge during jury selection based solely on group bias. If he does so, his opponent may object by making out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose . . . . [O]nce the [party] has made out a prima facie case, the burden shifts to the [other party] to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. . . . [Citation.] [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (Johnson v. California, supra, 545 U.S. at p. 168, fn. omitted.)

Here, the court found that Harbors peremptory challenge to Juror No. 9 was pretextual and that it was reasonable to infer that Harbor was in fact trying to get the entire panel excused or was trying to tamper with composition of the venire . . . . Rather than allow Harbor to achieve its goal by dismissing the entire panel, the court reseated Juror No. 9.

Harbor first contends there was no basis for the trial court to conclude it was attempting to have the entire venire excused. We disagree. There were four African-Americans seated in the panel during voir dire. Harbor challenged all but one of them. Of Harbors four peremptory challenges, its first three were against African-Americans. Harbors third challenge against Juror No. 9 was made without having asked her any questions during voir dire and was based solely on reasons that counsel admitted were a little less clear, which amounted to his perception that the juror gave him dirty looks. This was a sufficient basis for the trial court to conclude that Harbor was attempting to draw a Batson/Wheeler motion for the purposes of having the entire venire dismissed. (See People v. Bell (2007)40 Cal.4th 582, 597598 [striking most members of a group, using disproportionate number of challenges against group members, challenging group members without questioning can evidence improper motive].) Indeed, a venire man later questioned as an alternate stated that he, too, saw a pattern of challenging African-American jurors in Harbors conduct during voir dire. We find no error in the trial courts conclusion in that regard.

Harbor also claims the court prejudicially erred in reseating Juror No. 9 after it had challenged her instead of dismissing her or the entire venire. Contrary to Harbors contention, the controlling cases recognize that reseating a challenged juror is an allowable remedy after a successful Batson/Wheeler motion. The California Supreme Court expressly held in Willis: [S]ituations can arise in which the remedy of mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges and postpone trial. Under such circumstances, and with the assent of the complaining party, the trial court should have the discretion to issue appropriate orders short of outright dismissal of the remaining jury, including assessment of sanctions against counsel whose challenges exhibit group bias and reseating any improperly discharged jurors if they are available to serve. (Willis, supra, 27 Cal.4th at p. 821, italics added; see also People v. Overby (2004) 124 Cal.App.4th 1237, 1242.) The United States Supreme Court also recognized reseating a challenged juror as a possible alternative: [W]e express no view on whether it is more appropriate in a particular case . . . for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case [citation], or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. (Batson, supra, 476 U.S. at p. 100, fn. 24, italics added.) Here, the challenged juror was still available in the courtroom and so could be reseated as explicitly authorized in Willis.

We disagree with Harbors contention that the statements of the alternate venire man proved prejudice from reseating the juror. The alternate venire man stated: I felt that there was a pattern of excluding African-American jurors that I thought perhaps might have been the reason why one of the jurors was put back in the box. Contrary to Harbors characterization, it was its own pattern of questioning that led the alternate to discern discrimination, not the reseating of the juror. Nor are we persuaded that Harbors espoused alternate methods were superior to that chosen by the trial court. The court found that Harbor was attempting either to dispense with the entire venire or, at least, to tamper with the composition of the jury. Either of the alternate remedies proffered by Harbordismissing the entire venire or dismissing just Juror No. 9would have effectuated Harbors improper intent. To avoid that, the trial court elected to reseat Juror No. 9. We find no abuse of discretion in the trial courts doing so.

III. Substantial Evidence Supported the Verdict

We review the sufficiency of the evidence to support the verdict under the substantial evidence standard of review. Under this standard the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873874.) We resolve all conflicts in the evidence in support of the judgment. (Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1454.)

Bells theory of the case was that Harbor fell below the applicable standard of care by negligently delaying the second surgery, allowing the bowel to become so infected and inflamed so as to preclude closing the incision, resulting in six weeks of exposed intestines, washouts, ventilation, and gangrene. Bell pointed to blood that had leaked into the body cavity and a perforated ileum as the causes of the inflammation, but did not attribute negligence to the existence of those conditions, only to the delay in the surgery. Harbor defended on the grounds that its conservative course of treatment for a bowel obstruction was warranted by the objective tests, all of which indicated that Bell suffered only from an obstructed bowel which, along the postoperative bleeding into his abdominal cavity and intestinal inflammation, were recognized risks of his appendectomy.

A. Premature Discharge

Bell presented the following substantial evidence that his discharge on August 26 fell below the applicable standard of care and contributed to his damages. Bells expert testified that normally a patient with an unruptured appendix has very little to no pain following a laparoscopic appendectomy because the surgery is performed through three small holes and there should be literally be no pain because theres no source for the pain to have come from. But Dr. Raphaels review of the medical records showed that Bell experienced severe postoperative pain and that the amount of pain he had from the time he woke up in surgery right on through is consistent with something going on because he shouldnt have had anywhere near this level of pain. For example, the nurses notations stated that Bell was still in pain. Eight out of 10 . . . . as of 7:45 p.m. and 8:50 p.m. on August 25. Another notation at 9:45a.m. on August 26 recorded pain of eight. Bell was then medicated to a pain level of three or four before his discharge at 2:00 or 3:00 p.m. that afternoon. Dr. Raphael testified that with 10 as the maximum, eight constitutes severe pain and that even following major operations patients experience at most a pain level of six or seven.

Dr. Raphaels testimony was corroborated by the testimony of three percipient witnesses, Bells aunt, girlfriend and mother, all of whom described Bell as in severe pain prior to his August 26 discharge. Bells aunt testified that she complained to the doctors and asked that he be allowed to stay another day. But he was discharged nevertheless.

Dr. Raphael opined that the hospital fell below the standard of care by discharging Bell before investigating the red flag presented by his severe postlaparoscopic pain. Contrary to Harbors assertion that the records indicated Bell was improving before discharge, in fact they showed only that Bells severe pain was simply masked by medication. Moreover, Dr. Rafael testified that it was not reasonable to discharge Bell on August 26 with a pain level of three or four under any circumstances. Dr. Raphael drew the expert conclusions that the 12 hours from discharge to readmission contributed to Bells damage and suffering. Had Bell not been discharged on the 26th, investigation of his abnormal postoperative condition would have occurred earlier.

Harbor relied on the discharge summary to demonstrate that because Bells temperature, heart rate, and white cell count were within normal postoperative parameters, the discharge did not fall below the applicable standard of care. But Dr. Raphael disagreed, stating that the unusual degree of postoperative pain alone was a sufficient basis for his opinion. Harbor also presented its own doctors to contradict Dr. Raphael. For example, Dr. Smith, the doctor primarily responsible for Bells care, explained his conclusion that Bells pain was under reasonable control at discharge.

We find that Bell presented substantial evidence demonstrating that Harbors discharge of Bell on August 26, given his level of postoperative pain, fell below the standard of care.

B. Delayed Second Surgery

The following evidence supports the conclusion that Harbors delay until August 29 for the second surgery fell below the applicable standard of care and contributed to Bells damages. After Bells return to the emergency room approximately six hours after his discharge on August 26, he was readmitted at approximately 3:00 a.m. on August 27. Dr. Raphael testified that at 6:00 a.m. a CAT scan was performed, but it was not reviewed until hours later. The scan showed an intestinal obstruction, distension of the bowel and free air in the upper abdomen which indicated paralysis of the bowel and possible perforation. Dr. Raphael opined that Harbor should have operated, either conventionally or laparoscopically, within 12 hours of the CAT scan, which would have meant surgery late on August 27.

Instead, Harbor observed Bell for two more days until August 29when the second surgery was performed and the doctors discovered a massively distended bowel, nearly two liters of blood that had leaked into Bells body cavity and a perforation of the ileum. Bells intestines were so distended that his abdomen could not be closed without endangering his life. Therefore, his abdomen was left open, a six-week coma was induced and numerous abdominal washouts were performed with antibacterial fluids. An arterial line inserted into his wrist artery cut off the blood supply to some of his fingers, leading to gangrene. As a result of severe infection, Bell developed acute respiratory distress syndrome resulting in respiratory failure requiring a mechanical ventilator. As a complication of the ventilation, Bell developed holes in the surface of his lungs that leaked air into his chest cavity, requiring a drainage tube inserted through his chest wall. Bell also experienced septic shock resulting in intermittent periods of abnormal blood pressure.

Harbor argues that Bells case rested entirely on Dr. Raphaels mistaken assumption that a perforation allowed intestinal contents to leak, causing peritonitis and the inflammation of the bowel, but because the only evidence of a perforated ileum indicated that it was sealed, i.e., did not penetrate entirely through the tissue, Bell failed to present a prima facie case of negligence. Harbor relies on testimony that during the second surgery the doctors found only blood, not intestinal fluids, that the CAT scan showed no leak, that Bells vital signs were inconsistent with an infection, and that Bells bowel sounds were inconsistent with peritonitis.

But Bell presented substantial evidence that Harbor fell below the applicable standard of care regardless of whether the ileum was perforated and leaking. Specifically, Dr. Raphael testified: If the patient had been operated by the timetable that I suggested, he would have saved two days of inflammation inside the abdominal cavity. The obstruction, whether it was an obstruction of the ileus is really immaterial. The fact of the matter is that because two days elapsed, there was so much additional swelling of the bowel that they were unable to close the abdomen, and this is essentially what led to two months of him being on a ventilator, having to have washouts of the abdominal cavity because his intestines were out, exposed to the air. Eventually they did procedures on him, such as putting an arterial line in him, which unfortunately caused some arterial damage. All these things would most probably have been avoided had he been operated on two days earlier because the amount of intestinal damage would have been minimized. Had this been done according to this timetable you proposed, in my opinion, the degree of distension of the bowel would have been less. The degree of inflammation would have been less. The degree of whatever else was going on would have been less. The metabolic effect on the patient would have been less. They would probably have been able, if they did open him, they probably would have been able to close the abdomen and not have to go through these multiple washout procedures . . . . Thus, even though Dr. Raphael admitted that a patient such as Bell can develop an infection without bowel perforation and that he needed the second surgery due to a nonnegligent cause, he nevertheless criticized the timing of the operation.

Moreover, while the postoperative notes and Dr. Smiths testimony stated that no intestinal contents, infection or peritonitis were discovered during the second surgery, Dr. Leo testified that other postoperative documents dated September 1, 2003, stated, Post-op patient remains septic. . . . peritonitis . . . . after ileal perf, implying that there was a perforation sufficient to cause peritonitis.

Consequently, we find substantial evidence supports the jurys verdict.

IV. Instructional Error

Harbor assigns prejudicial error to the trial courts giving this instruction: You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party. Harbor contends that the instruction should not have been given because there was no evidence of an intent to suppress evidence either with respect to the hospital records pertinent to Bells first discharge or to the identification of the pain medication administered to Bell prior to his first discharge. We find that substantial evidence supports the trial courts instruction. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [party entitled to instructions on theories supported by substantial evidence].)

A.Hospital Records

The fact that Dr. Raphael was not provided that portion of the hospital records pertaining to Bells first hospitalization before his deposition formed the basis for the initial mistrial and played a significant role in the second trial. Harbor used it for impeachment, arguing that an expert witness willing to formulate opinions without all of the facts should not be given credence. Bell, in turn, accused either Harbor or Harbors counsel of deliberately withholding that portion of the hospital chart from production. The issue was thoroughly explored before the jury principally through the testimony of Dr. Raphael and Harbors attorney, Anderson. We summarize the history of this issue largely from that testimony.

During his first deposition, Dr. Raphael testified that he had not reviewed the records of Bells first discharge from the hospital because they are not available.^[2]He stated that the records were very important because without them he had to rely on third person accounts to base his expert opinion. He further commented that [t]hose records are very essential to either side of the case. And, addressing Harbors counsel, he stated, You need them yourself. . . . I didnt have them.  . . . apparently you dont have them . . . . And we are still whistling in the wind waiting for them.

In fact, Harbors counsel did have a complete set of records, including those pertaining to the first discharge, and confirmed that fact after the Raphael deposition when they compared their copy of the hospital records with the hospitals original documents. Harbors counsel then wrote a letter to Bells attorneys, which was admitted into evidence at trial but not included in the appellate record. The parties espoused conflicting characterizations of the letter. Harbors counsel testified that the letter stated they compared their copy of the chart to the original, they believed that they had a complete copy and if there are any additional records Dr. Raphael would like . . . . we would make that copy available to Dr. Raphael for inspection or photocopy . . . . But in his cross-examination of Harbors counsel, Bells counsel asked: Q: . . . . anywhere in this letter do you indicate Dr. Raphael referred to the first admission, referred to the first volume of records, we have those records . . . . A: No, it does not say that.

Trial first commenced in October 2005, but the court declared a mistrial based on the fact that Dr. Raphael had not reviewed the records of the first discharge.^[3]Dr. Raphael then reviewed the records, was again deposed and stated that the records did not change his opinions. Nevertheless, Harbor attempted to impeach him in the second trial with the fact that he formed his initial opinion with respect to Bells first admission and discharge without having reviewed the pertinent records. Bells counsel then elicited testimony during redirect suggesting that Harbor or Harbors counsel had not provided all of the appropriate documents.

Harbor called attorney Anderson to explain that even though she was familiar with the entirety of Bells hospital records at the time of Dr. Raphaels first deposition, Dr. Raphael had not brought his copy with him and no comparison of the various versions of the files could be immediately undertaken. She also testified that Bell had used his own copy service to acquire the hospital records and that they were bound differently than Harbors copy of the same records.

Harbor contends the willful suppression of evidence instruction was erroneously given because there was no proof that evidence was intentionally suppressed or destroyed. We disagree. The evidence discussed here supports the inference that Harbors counsel did not clearly disclose that they had a copy of the missing records in order to preserve the tactical advantage created by Dr. Raphaels having formed his initial opinion without those records. We have not been provided with a copy of the letter Harbors counsel sent after the deposition offering to make further records available, but Bells counsel implied below and in this appeal that the letter was ambiguously worded so as not to correct Dr. Raphaels mistaken understanding that the records of the first hospitalization were missing from all versions of the file, including the original. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 (Maria P.) [appellant bears burden of providing sufficient record to demonstrate error].) Additionally, we do not have the record surrounding the trial courts declaration of a mistrial and assume that matters considered there support the trial courts decision to give the willful suppression instruction. Therefore, Harbor has not demonstrated that the willful suppression instruction was erroneously given with respect to the hospital records.^[4]

B.Evidence of Morphine

The suppression of evidence instruction was general and did not refer to any particular issue or evidence. Having concluded that the evidence pertaining to the production of Bells medical records supported the trial courts giving the instruction, we need not consider whether the instruction was warranted with respect to the evidence of morphine.

V. Misconduct of Counsel

Harbor assigns error to the trial courts denial of its motion for a new trial based on numerous purported acts of misconduct by Bells counsel during closing argument. We review the trial courts order for an abuse of discretion. But we review the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.) In doing so, we consider the nature and seriousness of the misconduct, the general atmosphere, including the judges control of the trial, the likelihood of prejudicing the jury, the efficacy of the objection and admonition under all the circumstances, and the strength of the offending partys case. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 12471248.) Except in extreme cases, the effect of misconduct can generally be removed by an instruction to the jury to disregard it. (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal. 2d 602, 610 (Horn).) We assume the jury heard and understood such admonitions. (McCullough v. Langer (1937) 23 Cal.App.2d 510, 523524 (McCullough).) We address each of Harbors allegations of misconduct in turn.

A. Improper Reference to Voir Dire

Mr. Cohen, Bells counsel, made the following objectionable reference to voir dire during his closing argument: What is the hospital so afraid of that they have to pick and choose a select group that they think is appropriate? The court stated, Dont argue that. The jurors will disregard that argument. Out of the jurys presence, Harbor requested a mistrial, and the court stated to Bells counsel, Youre the first person who is raising a racial connotation. . . . Youve obviously made an appeal to racial bias which is the reason I didnt allow that juror to be excused in the first instance. Im going to deny the request for mistrial, but if I hear anything more like that, Im going to grant a mistrial and then theres going to be some real problems with attorneys fees and court costs. And thats an admonition to both sides in this case. To the jury, the court then stated: I would remind the jurors the arguments of counsel are not evidence. They are to completely disregard that last argument. Counsel later explained that he intended to refer to the fact that Harbor peremptorily challenged a doctor and did not intend his remarks to refer to race. But the court stated that only a person extraordinarily dense would not have understood the inference was racial.

We agree with the trial court and Harbor that the inference most readily suggested by Bells argument was racial and that counsels raising that inference constituted misconduct. But the trial courts immediate and pointed admonitions to the jury to disregard the argument removed the prejudice. This is particularly so in the context of a trial that featured two aggressive attorneys, both of whom elicited admonitions from an experienced trial judge on several occasions when they attempted improperly to gain advantage. By the time of closing argument, the jury was savvy to the ways of trial attorneys. The trial judge extended both counsel leeway to make their arguments but always kept close control over the proceedings. We trust that this jury was able to understand and follow the judges admonition and to reach a reasoned result despite counsels inferential reference to the racial element raised during voir dire.

B. Argument Regarding Concealing Evidence

Harbor objected below to Mr. Cohens argument that the hospital had lost the disputed medical records and the court sustained the objection stating [t]here is no such evidence. We find that the courts admonition cured any prejudice.

With respect to Harbors contention on appeal that Mr. Cohen unfairly targeted opposing counsels conduct with respect to the production of the medical records, we need not repeat here our earlier discussion concerning the suppression of evidence. But in considering the propriety of Bells arguments to the jury based on the disputed files, we emphasize the fact that Harbor initially raised the issue during its impeachment of Dr. Raphael and thus opened the door. Where a party has opened the door on an area, it is estopped from complaining that its opponent has profited by it. [Citations.] (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1683.)

C. Arguments Outside the Evidence

Counsel had the right to argue his views as to what the evidence shows, and . . . the conclusions to be fairly drawn therefrom. (Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at pp. 1679, 1683.) We must assume that the common sense of most jurors will aid them in distinguishing reasonable deductions of evidence from fanciful distorted constructions thereof. (McCullough, supra, 23 Cal.App.2d at p. 522.)

Harbor argues that a new trial should have been granted based on opposing counsels arguments that the doctors found bile during the second surgery and that the defense paid for Dr. Raphaels several depositions. Harbor objected to counsels statement that I believe there was blood and bile from a perforated ileum. The court sustained the objection and stated, [t]he only evidence heard was about blood. Mr. Cohen then adjusted his argument stating, The hospital, I take it, is going to argue there was no perforation. And this was just blood. The bottom line is whether its perforation with blood or just blood . . . look what happened to Mr. Bell. Look how sick he was getting and he got sicker and sicker and nobody did anything for two, two and a half days. We are satisfied that the courts admonition along with Mr. Cohens argument that the damages were not dependent upon leaking intestinal fluids cured his earlier statement.

Likewise, Mr. Cohens statement that Dr. Raphaels deposition fees were paid by Harbor was countered by the courts statement that there was no evidence that anybody specifically paid for the depositions. . . . Talking about Dr. Raphael, there was no evidence as to who paid him for the depositions. . . . The jury will disregard that portion of your argument. The courts admonition corrected counsels misstatement and cured whatever slight, if any, prejudice it may have created.

Harbor also contends that Mr. Cohens references to the doctors shoot[ing] [plaintiff] up with morphine was a suggestion that Bell became a drug addict as a result. We disagree that the references to morphine raised the inference drawn by Harbor. A key issue in the case was the degree of pain Bell suffered at the time of his first discharge. Bell used the evidence of morphine to emphasize that his pain was considerable, otherwise he would not have been given such a powerful medication, and that his pain was masked by the morphine when he was discharged. We do not see misconduct in Mr. Cohens references to morphine.

Harbor objects to Mr. Cohens arguments with respect to the fact that the perforation sealed itself by the time of the second surgery. Harbor correctly states that Dr. Sievers testified that sealed meant that the small hole in the ileum did not go all the way through the tissue. But Mr. Cohen based his argument on documentary evidence that apparently stated the second surgery was to correct a hole in the ileum and on the lack of documents showing that the hole was caused during the surgery on August 29. Because that documentary evidence is not before us, we cannot fully evaluate Harbors contentions in this regard and assume the trial court did not abuse its discretion. (Maria P., supra, 43 Cal.3d at p. 1295.) Moreover, we note that Mr. Schuler emphasized the definition of sealed during his closing argument.

D. The Golden Rule Argument

Bells lawyer made so-called golden rule arguments that asked the jury to calculate Bells damages as if his injuries had occurred to them or their family members. These arguments were improper and constituted misconduct. (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764765.) But in each case, the court immediately instructed the jury to disregard the arguments, curing any prejudice. (Horn, supra, 61 Cal.2d at pp. 609, 611 [improper golden rule arguments can be cured by an instruction from the court to disregard the argument].)

In the first instance, Bell argued, I ask you, what would it cost for you, for your son, wife . . . . Upon Harbors objection, the court stated [t]he jury will disregard the reference to what you would do for a family witness. Thats not the standard. Mr. Cohen then continued, Just forget everyone else. What would it cost for you to go through this. And the court again instructed, The jury has been given instructions on how you decide noneconomic damages. You need to follow those. Later during his argument, this exchange took place:

MR. COHEN . . . . All Im going to ask you to do is to consider that one day, one day you may need the services of a jury. You may need to ask a jury either for help or you may ask a jury to help you against someone else who is suing you.

THE COURT: Dont go there anymore, all right.

MR. COHEN: Id ask you to keep that same concern and . . . .

THE COURT: No, no. Ladies and gentlemen, the lawyer cannot appeal to the jury to do to their client what you would want done for you. Thats not reasonable. You need to follow the law.

Go on to another argument, Mr. Cohen.

The court quickly and forcefully interrupted Mr. Cohens improper golden rule appeals to the jury. We are satisfied that the admonitions cured any prejudice they may have generated. (Horn, supra, 61 Cal. 2d at p. 610.)

E. Arguments Not Objected To

Harbor purports to assign error to a number of Bells other arguments and techniques including disparaging Harbors witnesses, painting a picture of himself and his client as the underdogs against a well-funded defendant, being sarcastic, and claiming damages for pain and suffering during the time Bell was in a coma in derogation of the law. But Harbor did not object to these matters and, consequently, has waived his objections on appeal. (McCullough, supra, 23 Cal.App.2d at pp. 523524.) Having reviewed the entire record, we do not agree that Mr. Cohens conduct during closing argument was so egregious as to warrant a reversal on grounds not objected to. (Ibid.)

Moreover, we find no misconduct in calling Harbors witness a liar, so long as counsel tied that accusation to the trial record. (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) Bells counsel did so by reading from the trial transcript Dr. Smiths allegedly dishonest testimony that Dr. Raphael no longer practiced medicine. It was up to the jury to evaluate the veracity of that testimony.

Nor do we agree with Harbors contention that Bell asked for pain and suffering damages for the time he was in a coma in derogation of the law. Rather, Bell argued he was entitled to the loss of the six weeks he was in a coma. The jury was instructed that an appropriate item of damages was the loss of enjoyment of life. We find no misconduct in these arguments.

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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^[1] In fact, Juror No. 9 had identified herself as working for the Los Angeles County Assessors Office.

^[2] We were not provided transcripts of Dr. Raphaels deposition testimony, but portions of it were read into the record or described by witnesses during the trial.

^[3] We have not been provided the record pertaining to the granting of the mistrial.

4 Harbor does not assign error to the fact that the instruction was not applicable because the evidence purportedly suppressed was eventually given to Dr. Raphael and the jury. As a consequence, the presumption supplied by the instruction that the suppressed evidence was unfavorable to Harbor was wholly superfluous. But because the evidence came in during the trial any error in this respect was harmless. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)