Belfiore-Braman v. Rotenberg

235 Cal. Rptr. 3d 629, 25 Cal. App. 5th 234
CourtCalifornia Court of Appeal, 5th District
DecidedJune 26, 2018
DocketD072015
StatusPublished
Cited by7 cases

This text of 235 Cal. Rptr. 3d 629 (Belfiore-Braman v. Rotenberg) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belfiore-Braman v. Rotenberg, 235 Cal. Rptr. 3d 629, 25 Cal. App. 5th 234 (Cal. Ct. App. 2018).

Opinion

HUFFMAN, Acting P. J.

*631*236Plaintiffs and appellants Angela Belfiore-Braman and Stephen Braman (sometimes together Plaintiff) appeal a defense judgment entered on a jury verdict, in their medical malpractice action against defendant and respondent D. Daniel Rotenberg, M.D. (Defendant), an orthopedic surgeon. The jury found Defendant was not negligent in the care and treatment of Ms. Belfiore-Braman during the hip replacement surgery he performed on her, and accordingly, it did not answer the special verdict's question on whether such negligence was a substantial factor in causing injury to her, or loss of consortium to her husband and fellow plaintiff.

*237The issues on appeal center around the trial court's ruling in limine, after a hearing under Evidence Code 1 section 402, that excluded certain medical opinion testimony Plaintiff offered on issues of causation and damage, from her recently designated nonretained expert witness Dr. Aaron G. Filler, M.D., Ph.D. ("Dr. Filler"). The court determined that the proposed testimony would be unduly duplicative within the meaning of section 723 (allowing the court to limit the number of expert witnesses to be called by any party). Instead, the nonretained expert witness would be allowed to testify to the jury only as to his observations from an imaging study he performed and what the test results revealed to him about Plaintiff's condition.2

Plaintiff now argues this ruling in limine unfairly prevented her from making a showing that Defendant's alleged negligent acts were a substantial factor in causing her injuries. ( Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118, 8 Cal.Rptr.3d 363 ( Jennings ) [substantial factor test requires plaintiff to prove cause-in-fact].) However, we conclude the record supports the ruling. Plaintiff cannot show the trial court abused its discretion in precluding the offered testimony on causation and damage. ( Id. at p. 1119, fn. 9, 8 Cal.Rptr.3d 363 [abuse of discretion standard applies to admissibility of an expert's opinion on causation].) We affirm the judgment and its underlying ruling in limine.

I

BACKGROUND FACTS; DESIGNATION OF EXPERTS

Plaintiff was injured in an accident in 2006. In 2012, she consulted Defendant, who diagnosed her with moderate to severe arthritis of the left hip. She initially received nonsurgical treatments, and on April 23, 2013, he performed a left total hip replacement surgery. After surgery, she complained of numbness in both legs, left greater than right. Her left-sided symptoms persisted and Defendant concluded she had left-sided nerve irritation (neuropraxia ).

At Plaintiff's final visit with Defendant in March 2014, she reported some of her symptoms had improved, but she was still experiencing lower limb weakness, pain, and sensation abnormalities, including *632a drop foot condition. *238On July 18, 2014, her amended complaint was filed against Defendant, as well as others who were dismissed prior to or during trial.3

Defendant filed an answer and discovery began. For the expert witness exchange in September 2015, Plaintiff designated as her expert Dr. Eric Meinberg, a board certified orthopedic surgeon, for testimony on "all issues regarding standard of care, causation and damages." She also identified a number of treating doctors and nonretained experts, including her primary care provider Dr. Consuelo Ocampo. It is not disputed that Defendant designated Dr. Craig Swenson, also a board-certified orthopedic surgeon, on standard of care and related issues.

In the spring of 2016, Dr. Ocampo referred Plaintiff to Dr. Filler's office for an MR neurography study. The results of this May 18, 2016 imaging study were sent to Dr. Ocampo and Plaintiff in June 2016, and forwarded to her attorney. Consistent with his imaging practice, Dr. Filler did not meet with or speak to Plaintiff during the study.

Plaintiff's "Amended" First Expert Exchange was served in July 2016, disclosing that she had recently undergone the study with Dr. Filler.4 She also disclosed a new treating doctor, Dr. Robert C. Pace, and added him and Dr. Filler to her list of "treating health care providers/non-retained experts to testify regarding the issues of standard of care, treatment, diagnosis, prognosis, causation and why and how [she] was injured or damaged as claimed." Dr. Meinberg was still the only designated Plaintiff's expert.

Defendant promptly took Dr. Filler's deposition. He understood he was not designated as an expert in this case, and testified during the deposition that over his career, he had seen about 20 patients who had a sciatic problem after hip surgery. Sciatic nerve problems can stem either from trauma or a condition called piriformis syndrome, in which the nerve running through the piriformis muscle can become torn, irritated, or pinched.

From the nerve imaging study Dr. Filler performed for Plaintiff, he believed there were several possible causes for the sciatic nerve entrapment he observed. He attributed it to an improper placement of the retractor during *239the hip replacement surgery, leading to direct injury to the nerve, or possibly other types of mechanical pulling, catching, or burning that injured the sciatic nerve. Dr. Filler's neurosurgery practice does not include performing total hip replacements. In conducting his study, he did not review Defendant's medical records or the operative report from the surgery. He could not say precisely what happened at the time that must have caused the neurologic symptoms.

II

TRIAL AND VERDICT

A. Introduction

After taking Dr. Filler's deposition, Defendant filed a motion in limine to preclude *633him from testifying at trial, in part because he did not perform such surgery and had not reviewed the operative notes. Defendant also argued his opinions only established possibilities about the cause of injury, rather than probable causes. ( Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402, 209 Cal.Rptr. 456 ["Mere possibility alone is insufficient to establish a prima facie case."].)

Plaintiffs opposed the motion and submitted Dr. Filler's declaration in support of the medical and legal validity of his imaging study, generally and as performed on Plaintiff.

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Cite This Page — Counsel Stack

Bluebook (online)
235 Cal. Rptr. 3d 629, 25 Cal. App. 5th 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belfiore-braman-v-rotenberg-calctapp5d-2018.