Thursday, November 7, 2013

There Goes My (Smoking) Gun ...

Nevarrez v. San Marino Skilled Nursing & Wellness Centre, No. B235372 (D2d4 Nov. 4, 2013)

This is an appeal after a jury trial that awarded plaintiff almost $4.4 million in damages stemming from allegations of negligence, elder abuse, and statutory violations at a nursing home. As relevant here, the court of appeal upheld challenges to two jury instructions, but reversed on two theories of liability because the trial court abused its discretion in admitting prejudicial evidence regarding prior regulatory violations at the facility. In doing so, it missed an opportunity to clarify the law of evidence.

The first jury instruction issue concerned the clear and convincing evidence standard. The court gave CACI 201, which says that clear and convincing evidence “means that the party must persuade you that it is highly probable that the fact is true.” The instruction is based on In re Angelia P., 28 Cal. 3d 908 (1981). Defendants proposed to add additional language that appears in Angelia P, but is omitted from the CACI instruction, to the effect that “the evidence [must] be so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” The court reviewed the precedent on the standard, as well as precedent addressing former BAJI 2.62, which generally held that adding the additional language would be misleading because it would suggest a burden that approached the beyond a reasonable doubt standard that applied in criminal law. Thus, giving only the CACI instruction was proper.

Appellants also requested instruction on several provisions of the California Code of Regulations dealing with the use of restraints at medical facilities. The trial court denied the instruction because the quoted regulations did not “rise to the level of law.” But that is incorrect. Regulations, like statutes, can be considered in addressing the reasonableness of conduct, particularly in connection with negligence per se. In any event, the court found that only some of the requested regulations were relevant to the theories of liability at issue. Further, the proposed instructions were not proper so-called pinpoint instructions, because they did not explain the defendant’s particular theory of the case or how the quoted regulations related to it. Although the defendant claimed that the instructions related to a regulatory compliance defense, that was not evident from the way the requested instructions were formulated. Thus, as requested, the instructions were incomplete and misleading so the trial court did not err in refusing to give them.

Finally, the plaintiff offered into evidence a prior administrative citation related to the plaintiff’s treatment that had been issued against the defendant by the Department of Public Health. The citation stated that the defendant had violated several regulations and incorporated statements from the defendant’s staff members and a plan of corrections. The plaintiff sought to admit the evidence on the grounds that it tended to prove negligence per se and that it was an official record, subject to the hearsay exception in Evidence Code § 1280. The defendant objected on the grounds that the statement was hearsay, that the citation was inadmissible as lay or expert opinion testimony, and because it was unduly prejudicial under Evidence Code § 352. The trial court admitted the citation—redacted of other hearsay within it—on the grounds that the investigator’s finding was the type of official opinion that could be included within an official record.

If you are asking yourself why this is a point of evidence, as opposed to issue preclusion, I had that same question. It appears (from an aside in the opinion) that the citation was under appeal at the time the trial court permitted it into evidence. As California follows the minority rule that a judgment is not “final,” for the purposes claim or issue preclusion until direct appeals are exhausted, preclusion would not apply. See 7 Witkin California Procedure, Judgments § 364 (2012 online ed.). Query whether that might have changed during the two years this appeal was pending.

In any event, turning to the evidence issue, the court of appeal first found that the plan of correction should have been further redacted out of the citation. The relevant provisions of the Health & Safety Code that address these plans specifically provide that they cannot be used as admissions. Further, the plan could have been excluded as a subsequent remedial measure under Evidence Code § 1151.

As to the investigator’s opinions and conclusion, the rationale of the court of appeal is somewhat confusing, but it ultimately held that the trial court erred by letting them into evidence. It offered a hodgepodge of reasons. Overall, the court appears concerned that the trial court’s ruling was internally inconsistent with other rulings it made regarding the admissibility of evidence. But the opinion raises several grounds, including: 

  • The citation may not have met Evidence Code § 1280(c)’s requirement that “[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness[,]” and thus was potentially hearsay. Although official records can contain lay opinion, here, the investigator’s opinions were based in part on information that the investigator did not personally observe. Because most of his sources were witnesses not acting under an official duty, the presumption that official duties are properly performed, Evid. Code § 664, did not render them reliable. 
  •  On this issue, the court was also concerned that the investigator did not testify. Relying on Pruett v. Burr, 118 Cal. App. 2d 188, 201 (1953), the court noted that courts have been loathe to admit opinions contained in official reports into evidence because they are unsworn statements of opinion that are not subject to cross examination.
  • The investigator’s opinions in the citation reached the ultimate issues of a negligence per se claim. Although that does not make the testimony per se inadmissible, see Evid. Code § 805, the trial court had previously excluded other experts from testifying to the ultimate issue that particular laws were or were not violated. The trial court had “no rational basis for treating [the investigator] any differently than the parties’ expert witnesses with respect to offering an opinion that [the defendant] violated the law.
  • Finally, the court further believed that the citation was used to predetermine the case and confuse the jury. The citation was the “centerpiece” of plaintiff’s closing argument to the effect that the Department of Public Health has already determined that the defendant violated the relevant regulations. Counsel used that to insinuate that liability and causation had already been established. Although the appellants did not cite Evidence Code § 352, the court seems to agree that the citation could and should have been excluded on the ground the potential for undue prejudice or jury confusion outweighed the probative value of the citation.
The court thus determined that the trial court abused its discretion in admitting the citation. It went on to decide that on two of the three theories on which the jury found liability—negligence per se and elder abuse—admission of the citation was prejudicial and required reversal.

Affirmed in in part, reversed in part, and remanded.

I have no doubt that the court’s ultimate holding here—that the trial court abused its discretion in admitting the citation—was the correct one. This appeal, however, touched on and presented an opportunity to clarify the law of evidence on any number of issues: the foundation necessary to establish the official records hearsay exception, the admissibility of lay or expert opinions contained in official records, the use of statutory presumptions in establishing hearsay exceptions, the admissibility of opinion testimony that goes to the ultimate issue, and the relationship between a witness’s availability for cross-examination and the admissibility of his or her opinions. Generally, the issues of hearsay, opinion testimony, and prejudice outweighing relevance that are addressed by the court here are each a separate and independent condition of admissibility. But by raising multiple overlapping sub-rationales for keeping the citation out, and apparently relying on none in particular, the opinion is arguably dicta on each of the issues addressed.

That, to me, is a waste. The law of evidence is hugely important to trial lawyers. Having written my fair share of motions in limine, I can say from experience that it is also surprisingly undeveloped. Although we have a relatively robust codification of the rules of evidence in the Evidence Code, evidence cases are pretty rare and the decisional law on many issues is, to say the least, thin, particularly when it comes to civil cases. (It is, for a number of reasons, less than ideal to have the corpus of evidence case law consist overwhelmingly of capital criminal cases, as is currently the case for many issues.) Indeed, in the sixty-plus cases that have been covered since the inception of this blog, this is the first published opinion to address a significant evidentiary issue.

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