Can't Turn Back from the Batson Path

Unzueta v. Akopyan, No. B284305 (D2d7, Nov. 18, 2019)

In this med-mal case Plaintiff alleges that an anesthesiologist caused paralysis in her leg by mis-administering an epidural during childbirth. Plaintiff’s appeal raises our procedural issues: a jury selection issue, an issue regarding expert designation, an evidence issue, and a claim of misconduct during closing argument.

1.

The Baston challenge*—an objection to racial discrimination in the exercise of peremptory strikes of juror—has applied to civil cases for nearly thirty years. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). But compared to the enormous volume of litigation over Batson challenges in criminal cases, civil Batsons are pretty rare. Maybe prosecutors are just more racist, but I kind of doubt it. More likely is that civil litigators just aren’t particularly attuned to the issue. Plus, there’s no civil habeas.

This case illustrates that. Doctor’s lawyer exercised six of her seven strikes against Latinx jurors. Plaintiff’s lawyers, however, didn’t raise it. The trial judge—who has been around for a long time and has some criminal experience—flagged the Batson issue. During selection of alternates the following day, the judge found that the first step of the Batson analysis—a prima facie of racial discrimination in the exercise of peremptories—was met. The second step generally requires the striking lawyer to offer a valid, non-discriminatory reason for the strike.

But the trial judge didn’t require Doctor’s lawyer to meet the second step for each juror, because it was “yesterday’s news.” Because Plaintiff failed to raise a Batson issue during voir dire the trial court declined to revisit it. After a defense verdict—the jury found that the standard of care had been breached, but no causation—Plaintiff tried to re-raise the issue in a new trial motion, which was denied. Plaintiff appealed.

The Court of Appeal starts off by explaining the three-step Batson analysis. First, the challenger needs to make a prima facie showing of the use of an impermissible criteria like sex or race. This usually entails showing a pattern. Like in this case, six of the seven peremptories exercised by the Doctor were against Hispanic jurors.

Next, if the court finds a prima facie case, the striker needs to come up with a non-discriminatory justification. It doesn’t need to reach the level of cause. Indeed, it can be weird or idiosyncratic.  But the explanation needs to be clear and reasonably specific.

Then in the third step, the court needs to decide if the explanation is credible, and if the challenger has met her burden to show purposeful discrimination.

As a threshold issue, the Court explains that the Plaintiff didn’t forfeit her challenge by failing to object to the first four Hispanic jurors who were struck on the first day. But when the court brought it up, Plaintiff’s counsel agreed. Although not a portrait of clarity, it was clear enough from the record what strikes plaintiff was objecting to, and the suspect classification at issue. And in any event, since the issue came up before jury selection was over and a panel sworn, the purpose of the forfeiture rule was satisfied.

That being the case, the trial court erred in not moving on to step two. Moreover, in applying step two, the trial court should have made the Doctor come up with neutral reasons for all of her strikes of Hispanic jurors, including those exercised the prior day.

The Court orders a limited remand on the Batson issue only. The trial court needs to conduct steps two and three for the six struck Hispanic jurors. Only if there is a finding of purposeful discrimination does there need to be a new trial. That seems a little odd, given the passage of time. But that’s what the case law requires.

2. 

On the expert designation issue, Doctor called an expert on causation who had been designated by the Hospital, which settled prior to suit, but who was not designated by Doctor. Plaintiff objected to Doctor calling a witness she had not designated. But Plaintiff deposed the expert before the settlement. Under Code of Civil Procedure § 2034.310, any party can call an expert that has been designated by some other party, so long as the expert was deposed. So Plaintiff’s objection was correctly overruled.

3.

As to the evidence, Doctor was convicted of misdemeanor theft in 1992 and failed to report that in her medical licensing paperwork a few times until the early 2000s. (After that, the licensors asked if she had sustained any new convictions, to which she truthfully answered no.) Plaintiff tried to get that in at trial, but the trial court kept it out under Evidence Code § 352.

The Court finds that keeping out the theft itself was an easy call under § 352. It was a misdemeanor, a long time ago, so it had little bearing on Doctor’s truthfulness.

It finds the licensing misreporting to be a harder call. But it declines to reach the issue because Plaintiff can’t show prejudice. Doctor’s trial testimony was that she met the standard of care. But the jury already found adversely on that element, so if it disbelieved the doctor more it wouldn’t have mattered. Causation, on the other hand, was proven up through experts, so Doctor’s being a liar wouldn’t have helped Plaintiff’s case.

4. 

Finally, Doctor’s lawyer said some not very nice things about Plaintiff during closing. Like that she wanted the jury to take the Doctor’s purse and give it to Plaintiff and that Plaintiff wanted to be supported for the rest of her life by Doctor.

Lawyers get a pretty wide berth during closing argument. They can’t say crazy prejudicial things like making unfounded accusations of Nazism, or appeal to sympathy by claiming that a Plaintiff verdict will put the Defendant in the poorhouse or lead to the end of public services. But they are free to hit hard. 

The first statement here—in one about the purse—was made in the context of causation and wasn’t over the line. And Plaintiff didn’t object or seek a curative instruction on the second, so an appeal on it was forfeited.

*     *     *

Reversed in part and remanded for Batson steps two and three.

* One of the federal judges I clerked for was a DA  and then, for a very long time, a state court trial judge who mostly handled criminal departments. Californians being a proud people, he was of the habit of referring to the various criminal procedures exclusive by state court case names, which often left us scrambling to figure out things like, “what the hell is Hovey voir dire?” So, FWIW, the state court equivalent to a Batson challenge is called a Wheeler challenge. And, Golden State proud, the California Supreme Court case decided Wheeler eight years before U.S. Supremes decided Batson.

The Wrong Remedy

Pina v. Cnty of L.A., No. B285630 (D2d4 Aug. 7, 2019)

You can’t call expert witnesses at trial if you failed to designate them and offer them up for deposition. There’s one exception that rule. Code of Civil Procedure § 2034.310 permits a party to call an undesignated expert to “impeach the testimony of an expert witness” called by the other side. But in this context “impeach” means only to testify to the falsity or nonexistence of some fact on which impeached expert relied. The statute expressly prohibits an undisclosed expert from contradicting the impeached expert’s opinion. See § 2034.310(b).

Here, the trial court permitted an undisclosed expert to “impeach” the plaintiff’s expert by contradicting his opinion testimony on causation. The supposed justification for that was that the expert relied on discovery material Plaintiff produced too late in the game for Defendant’s disclosed expert to incorporate into his opinions. That was indeed probably a good excuse to let Defendant augment its disclosure with an additional expert or amend it to address additional topics. See §§ 2034.610, 2034.620. But it was not a justification for an undisclosed expert to give improper “impeachment” testimony that is expressly prohibited by § 2034.310(b). And since admitting the testimony was clearly prejudicial, a new trial is merited.

Reversed.

Bring on the Sandbag

Du-All Safety, LLC v. Superior Court, No. A155119 (D1d2 Apr. 18, 2019)

The Code of Civil Procedure anticipates two rounds of expert disclosure: an initial round and then a supplemental round. In the supplemental round, parties can designate experts on topics that other parties designated in their initial rounds. But there’s an important caveat set out in a case called Fairfax v. Lords: No sandbagging. On a topic that the parties have “every reason to anticipate” will require expert testimony, the parties don’t get to hold back and wait to disclose only as a supplemental. 

Paging Dr. F....

Belfiore-Braman v. Rotenberg, No. D072015 (D4d1 Jul. 13, 2018)

The Doctors keep a-coming.

Plaintiff is a patient. Defendant, Dr. D., is a doctor who allegedly messed up her sciatic nerve during a hip replacement. Plaintiff has a medical expert, Dr. M. And primary treating physician, Dr. O. Dr. D. has an expert, Dr. S. Dr. O referred Plaintiff to Dr. F., an MRI study guy, who never does a physical exam. He just reads film. Plaintiff subsequently switched primaries to Dr. P. All the docs are on the witness list, but only Dr. M. is a designated as an expert for Plaintiff.

SJ Experts Must Be Disclosed by Statutory Deadline

Perry v. Bakewell Hawthorne, LLC, No. S233096 (Cal. Feb. 23, 2017)

Based on the statutory deadlines, California’s somewhat unique method of expert discovery—a mutual exchange of expert information—ordinarily happens after summary judgment briefing is completed. Prior cases have thus held that when the expert exchange deadlines haven’t run, the failure to pre-disclose an expert whose testimony is used in connection with a summary judgment motion does not merit preclusion under Code of Civil Procedure § 2034.300, which applies to undisclosed trial experts.

What happens, however, when the circumstances of the schedule wind up with the expert exchange date occurring before summary judgment? Some older cases held that the disclosure deadline applied only to trial experts, so the failure to exchange information didn’t preclude an expert’s use on summary judgment, even if the exchange date had passed. But the Supreme Court, in an unanimous opinion by Justice Corrigan, disagrees and disapproves those cases in a pretty straightforward analysis. 

Section 437c(d) says that summary judgment affidavits must “set forth admissible evidence.” And § 2034.300 says that the testimony of expert witnesses whose information has not been exchanged as of the exchange date is inadmissible. So unless the party offering the testimony SJ can show one of the exceptions to § 2034.300—such as good cause for a tardy disclosure, see § 2034.710—the undisclosed expert’s testimony is inadmissible and can’t be used at summary judgment.

Court of Appeal affirmed.

The Downside of Ignoring in Limine Rulings

Osborne v. Todd Farm Serv., No. B260280 (D2d6 May 2, 2016)

Plaintiff was injured when an allegedly defective hay bale she was standing on fell apart. She sued two Defendants—the Supplier and a company she claimed had manufactured the bale. None of the records in the case identified the source. And while there are apparently features of hay bales that would clue one into where they were manufactured, that would require expert testimony. Plaintiff, however, didn’t timely disclose a hay source expert under Code of Civil Procedure § 2034.260. She instead waited and designated herself as a “supplemental” expert under § 2034.280. But as Fairfax v. Lords, 138 Cal. App. 4th 1019 (2006) explains, that’s a no-no. You can’t sandbag in disclosing experts as “supplemental” if you had every reason to anticipate that they would be needed in at the time of the original disclosures. So the trial court struck her designation.

Designate or Die

Perry v. Bakewell Hawthorne, LLC, No B264027 (D2d2 Feb. 3, 2016).

In opposition to one Defendant's motion for summary judgment in a premises liability case, Plaintiff submitted some expert declarations on the standard of care. Problem is that another Defendant had previously served a timely demand for exchange of expert information under Code of Civil Procedure § 2034.210 on all parties, but Plaintiff didn’t timely designate any experts. Which led the trial court to exclude them under § 2034.300, resulting in the SJ motion being granted.

The Court of Appeal rejects two arguments that the exclusion of the experts was error. First, the fact that the demand was served by a different defendant was of no moment. As the current version of § 2034.210 makes clear, once any party serves a demand, all parties have an obligation to exchange expert information, regardless of who made the demand. 

Second, the court rejects the argument that § 2034.300 does not merit the exclusion of expert testimony submitted in connection with summary judgment, as opposed to trial. Although, most of the time the designation date will fall after summary judgment has been briefed, that does not mean that § 2034.300’s rule of exclusion does not apply in those instances where the designation date comes first. Section § 2034.300 is generally addressed in terms of exclusion of expert evidence, not just at trial.

Affirmed.

2,764 Words on Inconsistencies in the Jurisprudence of Expert Disclosure. And Some Other Stuff . . .

Staub v. Kiley, No. C071500 (D3 June 16, 2014)

This med-mal case addresses the expert witness disclosure process under Code of Civil Procedure § 2034.010, et seq. Rather frustratingly, it creates a split of authority with another case from the same district. The two cases were decided within a day of each other, although this case was not ordered published until a month later. Worse, the justice who authored this decision joined the opinion in the previously published case. So we don’t just have an inter-district, an inter-division, or even an intra-division split. It’s a split between two opinions joined by the same justice over a two-day period. By publishing an opinion logically irreconcilable with its own prior published opinion, without so much as recognizing the conflict, the court does a disservice to litigants and trial judges throughout the state, who will be left to muddle through the inconsistent results.