Yes, Forthwith. But to Whom?

Lewis v. City of Benecia, No. A134078 (D1d1 Mar. 26, 2014)

This is a post-trial appeal in a sexual harassment and retaliation case with the kind of a fact pattern that HR is always warning you about. Two individual defendants won summary judgment and a third, the city, prevailed at trial. The jury’s special verdict found that plaintiff had established three of the elements on his retaliation claim against the city, but that he had not established that the city was the proximate cause of his injury. In the course of reversing and remanding as to the city and one individual and affirming as to the other, the court of appeal deals with an evidentiary sanctions issue and an interesting issue about partial trials on remand.

As to the evidentiary sanctions, plaintiff designated an expert psychologist to testify about the nature of his emotional distress. The city moved in limine to exclude the expert’s testimony because he failed to produce records of psychological testing he performed on plaintiff. At the in limine hearing, the court threatened to exclude the testimony if the documents were not “produced forthwith.” Plaintiff’s counsel apparently produced the documents directly to the city’s own expert psychologist, but not to the city’s attorney. At trial, the city renewed the motion, arguing that the court had ordered the documents produced to its counsel, not just its expert—an argument that the trial court found convincing.

The trial transcript, however, showed that, while the court was emphatic as to when the documents were to be produced, it never specified to whom plaintiff was required to produced them. Code of Civil Procedure § 2034.300(c) authorizes the exclusion of expert testimony for failure to produce the expert’s reports and writings. But given the ambiguity of the court’s order and plaintiff’s demonstrated attempt to comply with it, the trial court abused its discretion in excluding the expert as sanction for failure to follow its order. (It’s not clear from the opinion why the city’s expert did not just tell the city’s attorney that the records had been received.) Moreover, because the excluded testimony was germane to causation—the element the jury found the plaintiff had not proven—its exclusion was prejudicial and required reversal.

As to the scope of the reversal, plaintiff argued that the reversal against the city should entail remand for retrial only on the issue of causation, as the jury findings on the other elements in his favor were undisturbed in the appeal. But generally a court can enter a partial special verdict for plaintiff only if it resolves sufficient facts to establish liability on an entire cause of action. A reversal on just the causation element would leave the trial court with a partial special verdict on three elements, which would not satisfy that standard. And in any event, a retrial on just causation would be inherently confusing. Plaintiff alleged a series of retaliatory acts; the special verdict did not say which ones had been proven. A remand on causation alone would require the jury to determine whether the city’s acts caused injury without knowing what acts had already been established as potential causes. So a full retrial on retaliation was required.

Affirmed in part and reversed in part.