Saxena v. Goffney

Opinion

Plaintiffs are the widow and two children of the decedent, Rajesh Saxena. Saxena died in February 2003 after seeking treatment from Dr. Willie H. Goffney for an open wound on his right leg. Plaintiffs brought a wrongful death action against Goffney (and others involved in Saxena’s medical care) for wrongful death, negligence, and battery. The jury concluded Goffney was negligent in the diagnosis or treatment of Saxena and that he performed a procedure on Saxena without his “informed consent.” The jury awarded plaintiffs $12.1 million in noneconomic damages, over $600,000 in economic damages, and allocated 100 percent of the fault to Goffney.

Goffney moved for judgment notwithstanding the verdict (JNOV) on plaintiffs’ battery claim. He also moved for a new trial and to conform the judgment to the Medical Injury Compensation Reform Act (MICRA). Despite concluding the special verdict form—prepared by plaintiffs and given at their request—did not require the jury to determine whether Goffney committed a battery, the court denied the JNOV motion. Instead, it granted a new trial on plaintiffs’ battery and informed consent negligence claims, and on damages.

Plaintiffs alleged wrongful death and negligence claims against Goffney and others. The first amended complaint added a battery claim against Goffney. The battery cause of action alleged Goffney “performed medical procedures on [Saxena] without his informed consent. These medical procedures included intentional, unlawful and harmful contact by said Defendants.” Plaintiffs further alleged “[a]s a direct and proximate result of the battery [Saxena] suffered injuries resulting in death.” The court overruled Goffney’s demurrer to the battery claim, concluding the allegations were sufficient to state a cause of action.

Trial proceeded against Goffney only. After the close of evidence, Goffney moved for a nonsuit on plaintiffs’ battery claim. The court denied the motion. The court then gave the jury two instructions on the battery claim. The first instruction, based on former Judicial Council of California Civil Jury Instructions (2006) CACI No. 530, recited the elements of battery as follows; “Plaintiffs claim that [Goffney] committed a battery. To establish this claim, Plaintiffs must prove all of the following: [][] 1. That [Goffney] performed a medical procedure without [Saxena’s] consent; [][] 2. That [Saxena] was harmed; and [][] 3. That [Goffney’s] conduct was a substantial factor in causing [Saxena’s] harm, [f] A patient can consent to a medical procedure by words or conduct.” Over Goffney’s objection, the court also gave the jury a special instruction on plaintiffs’ battery claim which provided: “If you find that [Goffney] performed a surgical procedure on [Saxena] or provided other medical treatment to [Saxena] without his informed consent, you may find [Goffney] liable for battery, even if you find that the surgery was skillfully performed and he was not negligent.”

The court presented plaintiffs’ version of the special verdict form to the jury. The special verdict form asked the jury to answer the following questions: (1) “Was [Goffney] negligent in the diagnosis or treatment of [Saxena]?”; (2) “Was [Goffney’s] negligence a substantial factor in causing the death of [Saxena]?”; (3) “Did [Goffney] perform a debridement and Apligraf procedure on [Saxena] on February 10, 2003?”; (4) “Did [Saxena] give his informed consent for the debridement and Apligraf procedure on

Fuller-Austin, supra, 135 Cal.App.4th at pages 1005-1006, reached a similar result. That case concerned the reasonableness of an insured’s bankruptcy settlement and the effect of its reorganization plan on its excess insurers. The trial court entered judgment in favor of the insured, and a jury calculated the amount of the insurers’ liability. (Id. at p. 966.) The appellate court reversed the jury’s liability findings. (Id. at p. 1006.) It concluded the special verdict form was “fatally defective” because it “did not require the jury to make any finding on the issue of [the] reasonableness” of the reorganization plan. (Id. at p. 1005.) As the Fuller-Austin court explained, “[T]he jury’s finding that [the insured] was not guilty of inequitable misconduct did not answer the distinctly different question of whether the Plan was unreasonable.” (Id. at p. 1006.)

The same is true here. The jury concluded Goffney performed the debridement and Apligraf procedure on February 10 without Saxena’s “informed consent” by answering “no” to the following question: “Did [Saxena] give his informed consent for the debridement and Apligraf procedure performed on February 10, 2003?” (Italics added.) The special verdict form did not require the jury to answer the separate and distinct question of whether Goffney performed the procedure with “no consent” at all. Because the special verdict form did not require the jury to make a finding on battery, it “is like a puzzle with pieces missing; the picture is not complete.” (Falls, supra, 194 Cal.App.3d at p. 855.)

Plaintiffs offer several arguments urging us to overlook the deficiencies in the special verdict form, all of which fail. First, plaintiffs contend the use of the phrase “informed consent” in question four of the verdict form “made no functional difference” because lack of informed consent and lack of any consent are the same. This argument has no merit for the reasons discussed above. Moreover, the related questions on the verdict form dealt with lack of informed consent, not the lack of any consent. Thus, the jury found a reasonable person in Saxena’s position would have refused the procedure if he or she had been fully informed of the risks, and Saxena would not have consented to the procedure had he been given enough information about the

Plaintiffs cite Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 , 131 [ 41 Cal.Rptr.2d 295 ] (Jensen), for the proposition that a party always waives any error regarding a special verdict form by failing to object to it before the court discharges the jury. In Jensen, a jury awarded damages for BMW’s failure to comply with the Song-Beverly Consumer Warranty Act (Act; Civ. Code, § 1790 et seq.). The trial court denied BMW’s motion for new trial and BMW appealed, contending the special verdict form was defective because it “failed to submit for jury resolution the primary issue of BMW’s liability under the Act.” (35 Cal.App.4th at p. 131.) The Court of Appeal affirmed, holding the special verdict form was not prejudicially defective and, in any event, BMW had waived its right to challenge the form by not objecting before the jury was discharged. (Ibid.)

Jensen is inapposite. There, the jury was allowed to award damages without first being asked if BMW was liable for violating the Act. BMW wanted the jury to find it was liable before awarding damages, but it did not ensure the question was in the verdict form. Here, and unlike BMW, Goffney did not want the jury to conclude he committed a battery, so he had no obligation to ensure that questions on the verdict form addressed plaintiffs’ battery claim.

Plaintiffs’ next contention—that the invited error doctrine precludes Goffney from challenging the special verdict form—is also unavailing. The

We note Goffney submitted a similar verdict form. But Goffney had already lost his argument on plaintiffs’ erroneous special battery instruction and his motion for a nonsuit had already been denied. Plaintiffs were responsible for pursuing an erroneous battery theory both in the special instruction and in the verdict form. Plaintiffs received what they asked for: A verdict establishing liability for medical negligence and nothing more. Even if we assume, for the sake of argument, that Goffney caused the defective verdict form, the invited error doctrine does not apply. The doctrine does not extend to situations where a party induces the commission of the error, but does “not in fact mislead the trial court in any way—as where a party ‘ “ ‘endeavor[s] to make the best of a bad situation for which [it] was not responsible.’ ” ’ ” (Norgart, supra, 21 Cal.4th at p. 403; see also Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679 , 706 [ 17 Cal.Rptr.3d 397 ] [“the invited error doctrine requires affirmative conduct demonstrating a deliberate tactical choice on the part of the challenging party . . .”]; De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890 , 908 [ 114 Cal.Rptr.2d 708 ].) Here, there is no evidence Goffney made a deliberate tactical choice to keep quiet about the verdict form at trial and then profit from it on appeal, nor is there any evidence Goffney misled the trial court. In fact, the opposite is true: Goffney repeatedly—but unsuccessfully—advised the court about the differences between lack of any consent and lack of informed consent.

The court below was troubled by the failure of the special verdict form to address plaintiffs’ battery claim. In its order denying the JNOV motion, the court noted the distinction between negligence and battery and “the absence, in the special verdict, of any findings that defendant committed a battery, even though the jury was presented with evidence of that intentional tort.” The court’s analysis of the problem was correct. Its solution, however, was not. The proper way to remedy the defective verdict was to grant Goffney’s motion for JNOV on plaintiffs’ battery claim, not to order a new trial. (See Myers, supra, 13 Cal.App.4th at p. 960, fn. 8.) “The grounds

Section 2030.300, subdivision (a)(1), provides that the party propounding an interrogatory may file a motion to compel a further response where the answer received is “evasive or incomplete.” And the failure timely to file a motion to compel a further response to an evasive or incomplete answer constitutes a waiver of any right to a further response. (§ 2030.300, subd. (c).) The prevailing party on a motion to compel further responses is limited to an award of monetary sanctions. (§ 2030.300, subd. (d).) An evidence sanction is available only where the responding party “fails to obey an order compelling further response to interrogatories.” (§ 2030.300, subd. (e).)

The Civil Discovery Act also warns, however, that the failure to respond to discovery, or the making of evasive responses to discovery, is not condoned. The “[f]ail[ure] to respond ... to an authorized method of discovery” (§ 2023.010, subd. (d)), and “[m]aking an evasive response to discovery” (§ 2023.010, subd. (f)) are defined as “[mjisuses of the discovery process.” (§ 2023.010.) But the sanctions for misuse of the discovery process are limited “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of [the Civil Discovery Act].” (§ 2023.030.) Thus, the sanctions available to remedy evasive or incomplete responses to interrogatories are limited to those contained in chapter 13 of the Civil Discovery Act (§ 2030.010 et seq.).

The Thoren case involved conduct not specifically covered by the Civil Discovery Act—serving a willfully false answer to an interrogatory. Giving a willfully false answer is not even included in the Civil Discovery Act’s definitions of a “misuse of discovery,” unless the prohibition against causing “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” (§ 2030.090, subd. (b)) is broadly construed. (See § 2023.010, subd. (c).) The Thoren court, relying on a former provision of the Civil Discovery Act, approved the exclusion of a witness’s testimony as a sanction for giving a willfully false answer, likening the false answer to no answer at all. (Thoren, supra, 29 Cal.App.3d at p. 274 [“A willfully false answer to an interrogatory must be treated as the equivalent of no answer at all. . .”].) The discovery statute then extant authorized the imposition of an evidence sanction for the willful failure to serve and file answers to interrogatories. (See fn. 10, ante.) While current law continues to treat a failure to respond to discovery as a “misuse of the discovery process” (§ 2023.030; see § 2023.010, subd. (d)), the imposition of an evidence sanction is now conditioned upon

Although the statutory basis for the imposition of an evidence sanction has changed, Thoren has never been overruled. Its application, however, is narrow, covering a circumstance not specifically dealt with in the Civil Discovery Act. Thus, in the absence of a violation of an order compelling an answer or further answer, the evidence sanction may only be imposed where the answer given is willfully false. The simple failure to answer, or the giving of an evasive answer, requires the propounding party to pursue an order compelling an answer or further answer—otherwise the right to an answer or further answer is waived and an evidence sanction is not available. “[T]he burden is on the propounding party to enforce discovery. Otherwise, no penalty attaches either for the responding party’s failure to respond or responding inadequately!” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ][ 8:1136, p. 8F-59.)

The party moving to exclude evidence as a sanction for discovery abuse has the initial burden of establishing grounds supporting the request. (Evid. Code, § 500.) Where, as here, the court has not issued an order compelling a response or further response to an interrogatory (and where such an order has not been violated), the party moving for the exclusion of evidence has the burden of establishing the answer given by the responding party was willfully false, i.e., intentionally not true. Here, Goffney’s responses to Interrogatories 12.1 and 15.1 directed plaintiffs to look in Saxena’s “medical records” to determine the identities of individuals with knowledge of the incident, or who had information supporting Goffney’s affirmative defenses. Plaintiffs presented no evidence establishing or implying these answers were untrue, i.e., that Flashner’s and Palmer’s names were not contained within medical records in plaintiffs’ possession. It was plaintiffs’ burden to do so, and they failed. Goffney’s interrogatory answers were incomplete and evasive, and clearly merited the issuance of an order compelling further answers and an award of monetary sanctions. But plaintiffs failure to seek such an order constituted a waiver of any right to a further response. (§ 2030.300, subd. (c).) As discussed above, in the absence of a violation of an order compelling further answers, incomplete and evasive answers are themselves an insufficient basis to exclude evidence. Accordingly, the court erred in excluding Flashner’s and Palmer’s testimony.

The error, however, was harmless. “[W]here evidence is improperly excluded, the error is not reversible unless ‘ “it is reasonably probable a result

Goffney offered Palmer’s testimony as evidence that Saxena was breathing normally at the time of the February 10 procedure, and that neither Saxena nor Neelofer asked Goffney to postpone the procedure. The latter point has little, if any, relevance in light of plaintiffs’ failure to tender the battery issue to the jury. As to the proffered testimony concerning Saxena’s respiration, the jury was made aware of the measured respiration rate of 36 noted on Saxena’s February 10 medical chart. Plaintiffs’ medical experts described a respiration rate of 36 as abnormally elevated; Goffney described the rate as normal if Saxena had been engaging in strenuous activity near the time the respiration was measured. Goffney also testified Saxena did not exhibit shortness of breath on February 10, and Goffney’s expert testified the elevated rate as recorded was inconsistent with Saxena’s other vital signs. In light of the objective measurement of Saxena’s respiration rate, the medical debate concerning its significance or accuracy, Goffney’s testimony regarding his observation of normal respiration, and Neelofer’s testimony regarding Saxena’s shortness of breath, the addition of Palmer’s testimony, given three years after his actual observation, would have added little persuasive force to the other evidence presented to the jury.

Accordingly, it is not reasonably probable Goffney would have received a more favorable result had Flashner and Palmer testified. The exclusion of their testimony does not constitute reversible error.

DISPOSITION

The order denying the JNOV motion and partially granting a new trial is reversed and remanded with directions to the court to: (1) grant Goffney’s

Sills, R J., and Rylaarsdam, J., concurred.

The petition of plaintiffs and appellants for review by the Supreme Court was denied April 30, 2008, S161452.