Christie v. Flynn

Filed 8/24/07 Christie v. Flynn CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.

In this medical malpractice action, Kathleen Christie appeals a judgment of nonsuit entered against her on the ground she presented no expert evidence that William M. Flynn, M.D., breached the applicable standard of care. Christie contends the trial court improperly granted a defense motion in limine that precluded her from introducing the deposition testimony of one of her consulting physicians under Code of Civil Procedure^[1]section 2025.620, subdivision (c)(1) on the ground he lived in Utah, more

than 150 miles from court. Alternatively, she contends expert opinion was not required because the alleged malpractice was within the common knowledge of laypersons. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2003 Dr. Flynn performed cosmetic surgery on Christie's face and neck. In May 2005 she sued him, in propria persona, for medical malpractice, alleging that as a result of his breach of the standard of care she suffered "nerve damage and extreme touch sensitivity on the right side of her neck and right ear"; "abnormal appearance of her neck, specifically adhesion below the right mandible and around the platysma"; and "abnormal puckered scarring behind the right ear."^[2]

In January and May 2004 Christie had consulted with John McCann, M.D., when he was on staff at the University of California, Los Angeles. Christie was concerned about various aspects of her facelift, including "a painful sensation she was having behind her right ear" and "some adhesions below the right mandible . . . in the neck."

In August 2006 Dr. McCann took a position as the director of a medical clinic in Salt Lake City, Utah, but he retained a "satellite office" in Santa Monica, California. In February 2006 Dr. Flynn took Dr. McCann's deposition at the satellite office.

Christie did not retain an expert witness. On her witness list, she designated as percipient witnesses Dr. McCann, Dr. Stephen Krant, who performed surgery on Christie after Dr. Flynn's surgery, Dr. Lori Saltz, with whom Christie consulted, and Dr. Deniz Gocken, whose relationship with Christie is not indicated in the appellate record.

Before trial began, Dr. Flynn brought a motion in limine to preclude Christie "from introducting any expert testimony other than that provided by live oral testimony from Dr. Krant, Dr. McCann, Dr. Saltz, Dr. Gocken, or Dr. Flynn." (Italics added.) The motion explained, "it is anticipated that she will use portions of the medical records, along with the medical texts and articles, to submit testimony which should be reserved for a medical expert."

The motion also stated, the "only expert testimony plaintiff may provide would be from a medical expert testifying on the stand. The only deposition taken of a medical expert in this lawsuit was that of Dr. John McCann. Dr. McCann stated he did not see anything that would justify malpractice and that Dr. Flynn's work seemed to be completely within the standard of care in the Southern California community. [Citation.] Dr. McCann also had no criticisms of Dr. Flynn or the procedure he performed on plaintiff in September 2003. [Citation.] Plaintiff could not use Dr. McCann's deposition to support her allegation Dr. Flynn violated the standard of care unless she introduced the live testimony of another medical expert that relied on the deposition of Dr. McCann. However, because plaintiff cannot retain any experts to review the materials in this lawsuit, the defense respectfully requests the court require an explanation from plaintiff prior to any attempt on her part to use the deposition of Dr. McCann to argue Dr. Flynn breached the standard of care." The court granted the motion in limine.

During opening statement Christie advised the jury, "I intend to present evidence from a deposition from another doctor that if a nerve is injured . . . ." The court stopped her comments.

After Christie's opening statement, Dr. Flynn moved for nonsuit on the ground she had no expert testimony. Christie advised the court she intended to rely on Dr. McCann's deposition testimony because he lived in Utah. Dr. Flynn's counsel responded, "Your Honor, his deposition was taken. His office is in Santa Monica. He still maintains an office in Santa Monica." The court stated, "whether [Dr. McCann] is testifying or not isn't necessary in this ruling on this motion." The court denied the motion for nonsuit without prejudice.

During her case-in-chief, Christie called Dr. Flynn under Evidence Code section 776. Dr. Flynn testified he was unaware of Christie's alleged nerve problems until she sued him. He told Christie he saw no adhesion in her chin area, and "[i]t's freely mobile. It looks very nice. I think you have a tremendous result from your facelift." Dr. Flynn gave no testimony suggesting he breached the applicable standard of care or caused her any damage. After Christie finished questioning him, she called no other witnesses and rested her case. She did not attempt to introduce Dr. McCann's deposition testimony.

Dr. Flynn then renewed his motion for nonsuit. The court granted the motion, explaining to Christie that she presented no evidence of a breach of the standard of care, causation or damages, and the "only expert that you called was the defendant. He specifically . . . gave his expert opinion that there was no breach."

DISCUSSION

I

"The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983.) " 'Ordinarily, the standard of care required of a doctor, and whether he [or she] exercised such care, can be established only by the testimony of experts in the

field.' " (Gannon v. Elliott (1993) 19 Cal.App.4th 1, 6.)

Christie contends the court's granting of Dr. Flynn's in limine motion violated section 2025.620, subdivision (c)(1), which provides that any party may use for any purpose the deposition of any person if the court finds the person lives more than 150 miles from the place of trial. Contrary to Dr. Flynn's position, Christie was not required to make a showing of unavailability or that she had tried to subpoena Dr. McCann. "[A]ny deposition can be used in lieu of live testimony simply by showing that the deponent resides more than 150 miles from the courthouse." (Wenger et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2005) 8:813.4, p. 8C-103.) An abuse of discretion standard of review applies to the court's evidentiary rulings. (City Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.)

Dr. Flynn asserts that Christie misinterprets his motion in limine and the court's ruling. According to him, he did not intend to exclude Dr. McCann's deposition testimony, and the true purpose of the motion was "to prevent plaintiff from offering any expert testimony not offered by a medical expert commenting on this case." The caption of the motion contains that quoted language, but the motion argued the "only expert testimony plaintiff may provide would be from a medical expert testifying on the stand," "[a]ny expert testimony plaintiff intends to introduce must come from the live testimony of one of these doctors," referring to percipient witnesses, including Dr. McCann, and "Dr. Flynn respectfully requests the court issue an order in limine precluding plaintiff from introducing any expert testimony other than that provided by live oral testimony." (Italics added.) It appears clear that Dr. Flynn sought to exclude Dr. McCann's deposition testimony.

Whether the court intended to exclude it is unclear. The court's minutes from the motion in limine state Christie was prohibited "from offering expert testimony not provided by a medical expert commenting on the case," which may indicate the court did not intend to disallow Dr. McCann's deposition testimony. During Christie's opening statement, however, the court did not allow her to advise the jury what she intended to prove through the testimony. Then, when Dr. Flynn initially moved for nonsuit after Christie's opening statement, the court indicated it need not determine then whether the testimony was admissible, and stated, "we'll just see how this plays out." Christie then made no attempt to introduce the testimony during her case-in-chief.

In any event, Dr. McCann's testimony was unhelpful to Christie, and thus reversal is unwarranted even if the court excluded Dr. McCann's deposition testimony and misinterpreted section 2025.620, subdivision (c)(1) in doing so. Dr. McCann testified that Christie's complaints when she consulted him in January 2004 "would be fairly typical concerns of patients four months after the procedure she underwent." When asked whether he had any criticisms of Dr. Flynn's treatment, he said no. When asked if he had any opinion regarding the standard of care Dr. Flynn exercised he responded, "I don't see anything that would justify malpractice. The work seemed to be completely within the standard of care[] in our community," meaning Southern California and specifically the Los Angeles area. Dr. Flynn testified, "I don't believe he injured her," and "the only failure is to meet the patient's expectations," which are not an indication of negligence. Dr. McCann could not attribute adhesions on Christie's neck region to any negligence of Dr. Flynn.

Christie asserts that had Dr. McCann's deposition testimony been allowed, "the jury would have been presented with evidence that [Christie] had complained of nerve injury to Dr. McCann. His deposition testimony would have contrasted with the testimony of . . . Dr. Flynn that [she] never complained of nerve injury symptoms." Dr. Flynn testified he was unaware of any "nerve symptoms" until Christie sued him. Dr. McCann testified in deposition that Christie complained of a painful sensation "[b]ehind the right ear and on the right ear lobe," and such a sensation could hypothetically be the result of negligence. Dr. McCann elaborated, "It would be possible to, in the course of performing a face lift surgery, cut a sensory nerve. If one then took all appropriate and possible steps to correct that transaction [sic], I don't believe that to be negligence. I believe that to be an injury."

Dr. McCann's testimony that Christie complained to him of nerve pain, however, would not establish she complained earlier to Dr. Flynn of nerve pain, or that Dr. Flynn committed malpractice. Even though Christie reported neck pain to Dr. McCann, he had no criticism of Dr. Flynn's medical care. As Christie could not have established a breach of the standard of care through Dr. McCann's deposition testimony, exclusion of the evidence, for whatever reason, was not a prejudicial abuse of discretion.^[3]

II

Christie also contends the judgment of nonsuit was improper because she could prove her case without expert testimony based on a res ipsa loquitur theory. An exception to the expert testimony requirements exists when " ' "the conduct required by the particular circumstances is within the common knowledge of the layman." [Citations.]' " (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) "The 'common knowledge' exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson 'is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.' [Citations.] The classic example, of course, is the X-ray revealing a scalpel left in the patient's body following surgery. [Citation.] Otherwise, ' "expert evidence is conclusive and cannot be disregarded. [Citations.]" ' " (Ibid., fn. omitted.)

Christie asserts "an expert would not be needed to explain to a jury that, where a patient complains of symptoms of nerve injury in an area where a surgeon just operated, . . . and nerve injury is a known occurrence in that type of surgery, . . . 'due professional care requires' that the surgeon take steps 'to ascertain the cause of such pain.' "

We conclude that matters pertaining to alleged nerve damage suffered during cosmetic surgery and the proper treatment for such damage are not within the common knowledge of laypersons.

DISPOSITION

The judgment is affirmed. Dr. Flynn is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

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^[1] Statutory references are to the Code of Civil Procedure unless otherwise specified.

^[2] The complaint also included a cause of action for breach of contract, but Christie dismissed it.

^[3] Christie complains that Dr. Flynn's counsel, Stephen Sigler, concealed from the court that Dr. McCann had moved to Utah. The record shows that after Christie advised the court she intended to use Dr. McCann's deposition testimony because he lived in Utah, Sigler stated: "His office is in Santa Monica. He still maintains an office in Santa Monica." No intent to deceive is evident, as Sigler did not dispute Christie's representation that Dr. McCann had moved to Utah, and Dr. McCann actually did maintain an office in Santa Monica.