The opinion
Filed 3/3/21 Borba v. Erickson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MEREDITH BORBA et al.,
F078295
Plaintiffs and Appellants,
(Super. Ct. No. 2014781)
v.
OPINION
LARRY ERICKSON et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M.
Beauchesne, Judge.
Figari Law Firm and Barbara E. Figari for Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza, Dana L. Stenvick; Galloway, Lucchese,
Everson & Picchi, Michael C. Austin and Christopher A. Tanimasa, for Defendants and
Respondents.
-ooOoo-
Plaintiffs Meredith Borba and Frank Borba (collectively, the Borbas) appeal from
the judgment entered after the trial court granted summary judgment on their fifth
amended complaint, which stated a single cause of action for negligent infliction of
emotional distress, in favor of defendants, Larry Erickson, M.D., Gould Medical Group,
and Sutter Gould Medical Foundation (Sutter Gould) (collectively, respondents). The
Borbas’ claim was based on allegations that, after safely delivering their baby,
Dr. Erickson handled the baby in a manner that restricted the baby’s airway, causing the
baby to be temporarily discolored. Respondents supported their summary judgment
motion with three experts’ declarations that Dr. Erickson met the applicable standard of
care, he did not cause the baby’s injuries, and the baby was not injured. The trial court
granted the motion after sustaining respondents’ evidentiary objections to the expert
declaration the Borbas submitted in opposition to the motion.
On appeal, the Borbas contend they established triable issues of fact without
expert testimony, which they assert was not required, and, in any event, their expert
witness’s declaration, which created triable issues of fact, was improperly excluded from
evidence. They also contend the trial court erred in: (1) denying their motion to compel
discovery concerning respondents’ experts, which they brought after respondents filed
their summary judgment motion but before the exchange of expert information; and
(2) sustaining respondents’ demurrer to the Borbas’ claim of intentional infliction of
emotional distress alleged in their fourth amended complaint. Finding no merit to the
Borbas’ contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Meredith arrived at the labor and delivery unit at Doctors Medical Center of
Modesto (Medical Center) at 8:55 p.m. on January 18, 2014, with spontaneous rupture of
her membranes and was admitted as an inpatient at 11:00 p.m. for active labor.1
Thereafter, she underwent continuous fetal heart rate monitoring with a Doppler
1 Meredith has a Bachelor of Science degree in nursing and became a registered
nurse in 2005. Since then she worked as a clinical nurse in the Neonatal Intensive Care
Unit at the University of California San Francisco (UCSF) Medical Center, caring for
babies from 23 weeks premature to term, and attending deliveries of healthy and sick
babies, including high-risk deliveries.
2.
ultrasound; the baby’s vital signs were within normal limits the entire duration of
monitoring. At 8:30 a.m. the next morning, Meredith was dilated to 10 and was 100
percent effaced, and the baby was doing well based on the monitor readings.
Dr. Erickson was on-call for Meredith’s regular doctor, Dr. Robert Altman, and
was called to the Medical Center to deliver the baby. It is not uncommon for OB/GYN
medical groups to have an OB/GYN on call for each other since labor and delivery can
and does occur anytime of the day or night. There was no emergency or emergent
circumstance surrounding the course of Meredith’s labor, although at one point the nurse
instructed Meredith not to push for 10 to 15 minutes, even though she was in
“excruciating pain” and felt the need to, because they were waiting for Dr. Erickson to
arrive. According to Meredith, while she was in labor, her nurses told her the medical
group Drs. Altman and Erickson were affiliated with did not deliver at the Medical
Center very often, and Dr. Erickson was “not happy” she was delivering there.
Dr. Erickson was at Meredith’s bedside for the delivery at 8:39 a.m. This was the
first time during her labor that Meredith was seen by any doctor, including Dr. Erickson,
which Meredith found odd. According to the Borbas, Dr. Erickson did not say anything
to them when he entered the room and only asked whether the nurse was going to take
down the bed into a delivery position or whether he would have to “break it.” The
nurse responded she would “break down the bed” when he was dressed and ready.
Dr. Erickson had only been in the room two and a half to three minutes and barely had
his glove on before the baby was delivered. Dr. Erickson did not say anything else
during the delivery.
The baby, Boston, was born at 8:43 a.m. and cried at birth. He weighed nine
pounds and measured 20.5 inches in length. The Borbas allege immediately after the
delivery, Dr. Erickson “grabbed the baby by the neck” with his left hand and “held him
up without supporting the baby’s weight with his other hand” while cutting the umbilical
cord, causing the baby to lose oxygen and “turn blue.” Frank described the way
3.
Dr. Erickson was holding Boston as a “choke hold” and saw Dr. Erickson’s grip tighten,
choking him further. Meredith saw Dr. Erickson hold Boston from behind his neck, with
his thumb and fingers “around his neck cutting off his airway.”
Meredith started to panic and pled with Dr. Erickson numerous times to give her
son to the nurse. She saw Boston change colors from normal newborn coloring to “dark
purple,” and said he was not breathing or crying; his lips were pursed, his face swollen,
and his body “completely limp.” Meredith said Dr. Erickson moved very slowly while
holding Boston; he was not rushing while he clamped and cut the umbilical cord and did
not react to her pleas to hand the baby to the nurse. Meredith felt Dr. Erickson wanted
her to suffer because he changed nothing in response to her pleas and she “was suffering,
as well as my child.”
Dr. Erickson held Boston in this manner for one to two minutes before handing
him to nurses. Dr. Erickson testified he held Boston that way because it was the only
way to hold him at the time since he was covered with vernix, which was very slippery,
and he was not able to get ahold of Boston any other way. Boston began crying again
within 15 to 30 seconds after being handed to the nurses.
Boston’s newborn examination record does not reflect that he was cyanotic at or
anytime following his birth. Dr. Erickson charted Boston’s APGAR score2 as seven at
one minute after birth, while the nurses charted it as eight at one minute and nine at five
minutes.3 Boston began breastfeeding shortly after birth without complication. Meredith
and Boston were discharged home at 4:50 p.m. the day after his birth.
2 APGAR scores measure a newborn’s breathing effort, heart rate, muscle tone,
reflexes, and skin color.
3 Meredith did not agree with the APGAR scores, as nothing was documented about
what happened and she did not believe it was possible for Boston to have APGAR scores
of eight and nine.
4.
Meredith said employees of the Medical Center were apologetic about what
happened. At Meredith’s request, the delivery nurse said she would file an incident
report; the delivery nurse also said she was going to file a complaint. Meredith asked the
pediatrician and nursery nurse to conduct a thorough assessment of Boston’s head and
neck, telling them he had been held one-handed and “strangled” during delivery. The
pediatrician did not say anything in response to Meredith’s request and she did not have
an opportunity to talk to him after he evaluated Boston.
Following Boston’s birth, Meredith experienced anxiety, lack of sleep, sadness
and nightmares, which progressively continued. She also experienced overwhelming
sadness, difficulty bonding, sleepless nights, constant worry about her baby, anxiety, and
panic attacks, which she did not experience with her other children. She became
depressed and withdrew from Frank. Dr. Altman diagnosed her with postpartum
depression in 2014, as did another doctor she saw that same year.
Meredith’s doctor referred her to Anna Glezer, M.D., an assistant clinical
professor at UCSF who is board certified in psychiatry and forensic psychiatry, for
postpartum and anxiety issues. Dr. Glezer saw Meredith once in person, in April 2016.
Dr. Glezer noted Meredith “described her second child’s birth and the subsequent
symptoms of re-experiencing, avoidance, [and] panic with triggers,” which were
“consistent with postpartum PTSD.” Dr. Glezer further noted Meredith’s vulnerability to
PTSD may have been due to a prior history of childhood trauma. Dr. Glezer
preliminarily diagnosed Meredith with postpartum PTSD based on the information
Meredith verbally provided about her experience and symptoms. Meredith’s complaints
also were consistent with a generalized anxiety condition.
Meredith was concerned about Boston’s development. At six months he was not
babbling like he should and while his language had improved, it did not progress like her
other two children. According to Meredith, the two pediatricians who had seen Boston
said they would not know for sure about his development until he was school age.
5.
Meredith admitted she only had her other children to compare Boston to, but he was not
developing within the same timeframe as his two siblings.
I. This Lawsuit
Meredith, Frank and Boston filed a medical negligence action against Dr. Altman,
Tenet Healthcare Corporation (Tenet), and the Medical Center in January 2015.
Dr. Erickson subsequently replaced Dr. Altman as a defendant,4 and Gould Medical
Group and Sutter Gould were added as Doe defendants.
A third amended complaint was filed in January 2016, alleging causes of action
for medical negligence and battery against all defendants. After the trial court sustained
demurrers to the third amended complaint with leave to amend, the Borbas5 filed a fourth
amended complaint against Tenet, the Medical Center, Dr. Erickson, Sutter Gould, and
Gould Medical Group, in May 2016, which alleged causes of action for negligent and
intentional infliction of emotional distress.
In the fourth amended complaint, the Borbas alleged the following. When
Dr. Erickson delivered Boston, he “grabbed the baby by the neck and held him up
without supporting the baby’s weight with his other hand.” The Borbas were “helpless to
stop him,” though Frank was photographing the birth. Meredith, who was a neonatal
intensive care nurse, “pleaded with Dr. Erickson to hand” the baby, who had “started to
turn blue,” over to her or the nurses, but “Dr. Erickson ignored her, and casually turned to
pick something up from his instrument table, and wipe his brow.” The Borbas “watched
helplessly as the baby was finally handed over to the nurses because Dr. Erickson had
caused him to stop breathing.” Boston “became cyanotic (turned blue)” after delivery,
but “cyanosis was not notated on the Newborn Examination Record,” which was attached
4 Dr. Altman was dismissed from the action without prejudice in March 2016.
5 Starting with the fourth amended complaint, Boston was no longer a named
plaintiff.
6.
to the fourth amended complaint as an exhibit. The Borbas “were forced to watch”
Dr. Erickson “hold their baby until he turned blue,” while Dr. Erickson “refused to stop
holding the baby by his neck and/or give the baby to any other person, including nurses,
who were in the room.” Dr. Erickson’s action “caused a loss of oxygen” to Boston’s
brain, which “resulted in developmental delays and difficulties for the baby,” and the
Borbas sustained both “serious” and “severe emotional distress” as a result of
Dr. Erickson’s conduct. The fourth amended complaint contained clip art images
purportedly depicting respondents’ trademark logos and a photograph allegedly of
Dr. Erickson holding Boston after birth.
II. The Demurrer and Motion to Strike
In May 2016, the respondents6 filed a demurrer and a motion to strike with respect
to the fourth amended complaint. In the demurrer, respondents challenged both the
negligent and intentional infliction of emotional distress claims on grounds they failed to
state facts sufficient to constitute causes of action and were uncertain. (Code Civ. Proc.,7
§ 430.10, subds. (e) & (f).) In the motion to strike, respondents sought, among other
things, to strike the photograph and clip art in the complaint. The Borbas opposed both
the demurrer and the motion.
The trial court issued a tentative ruling overruling the demurrer as to the negligent
infliction of emotional distress claim but sustaining it, without leave to amend, as to the
intentional infliction of emotional distress claim. As for the motion to strike, the trial
court intended to grant it in part and deny it in part and order the Borbas to remove the
clip art and embedded logos, as well as language regarding intentional torts.
6 In November 2017, Tenet and the Medical Center were dismissed from the action
with prejudice. They are not parties to this appeal.
7 Undesignated statutory references are to the Code of Civil Procedure.
7.
A hearing was held on July 6, 2016. Following argument by counsel, the trial
court confirmed its tentative ruling with some modifications. In its written order, the trial
court stated it sustained the demurrer as to the intentional infliction of emotional distress
claim without leave to amend because the complaint failed to state facts sufficient to
constitute a cause of action and was uncertain. As for the motion to strike, the trial court
ordered the Borbas, among other things, to remove specific intentional tort language and
all photographs, clip art, and embedded logos. The trial court ordered the Borbas to file a
fifth amended complaint containing one cause of action for negligent infliction of
emotional distress.
The Borbas subsequently filed a fifth amended complaint with a single cause of
action for negligent infliction of emotional distress based on the same set of facts alleged
in the fourth amended complaint, with the photograph and trademark logos removed. As
for the elements of the claim, the Borbas alleged the following: (1) Dr. Erickson
“performed acts” on Boston “in a negligent manner causing him injury” and “held him
during the labor and/or delivery process, which caused him to los[e] oxygen to the brain
and turn blue”; (2) the Borbas were present in the delivery room and aware of the injury
as it was occurring; (3) as a result of Dr. Erickson’s conduct, the Borbas “were forced to
endure serious emotional distress … at being forced to watch their baby be deprived of
oxygen immediately upon his birth,” which “[a]n ordinary, reasonable person would not
be able to cope with,” and Meredith’s feelings were exacerbated because, as a neonatal
nurse, she knew the consequences of Dr. Erickson’s action but was helpless to stop him;
and (4) Dr. Erickson’s conduct was a substantial factor in causing the Borbas’ serious
emotional distress. The Borbas further alleged Dr. Erickson was acting as either an agent
or employee of Tenet, the Medical Center, Gould Medical Group or Sutter Gould.
III. The Summary Judgment Motion
A. The Moving Papers
8.
Respondents moved for summary judgment or, in the alternative, summary
adjudication, in November 2017. Respondents argued the negligent infliction of
emotional distress claim failed as a matter of law for the following reasons: (1) neither
parent could recover as bystanders because Dr. Erickson acted within the standard of care
and Boston was not injured; (2) neither parent could recover as direct victims because
Frank did not have a physician-patient relationship with Dr. Erickson, Dr. Erickson did
not breach the standard of care, and Boston was not injured; (3) there was no causal
connection between Meredith’s alleged emotional injury and Dr. Erickson’s conduct; and
(4) since the Borbas could not recover against Dr. Erickson, they could not recover
against the other respondents.
In support of the motion, respondents submitted declarations from Jeffrey R.
Cragun, M.D., and Richard L. Oken, M.D. Respondents also asked the trial court to take
judicial notice of an August 2017 declaration of James Byrne, M.D., which the Medical
Center submitted in support of its own summary judgment motion.
Dr. Cragun, a licensed physician who is board certified in obstetrics and
gynecology, opined all care respondents provided was within the standard of care in the
obstetrics and gynecology community, and none of them were negligent at any time
during Meredith’s or Boston’s care and treatment.8 In Dr. Cragun’s opinion there is no
specific standard of care as to how an obstetrician is supposed to hold a newborn
8 In rendering his opinion, Dr. Cragun reviewed the fifth amended complaint,
Meredith’s and Boston’s medical records from the Medical Center, Meredith’s medical
records from Sutter Gould, and the depositions of Meredith and Frank, as well as color
photos marked as exhibits to Meredith’s deposition. Dr. Cragun stated it was within his
experience, training and scope of practice to manage and care for patients undergoing
obstetrics and gynecology treatment. He was familiar with and competent to testify to
the standard of care for obstetrician/gynecologists, including labor, delivery and the
monitoring of mothers and their babies before and after birth. Moreover, since he was
board certified in obstetrics and gynecology, he was familiar with birth complications
related to infants born with hypoxia or anoxia (decreased or absent oxygen to the brain),
as well as such infants’ potential adverse outcomes or lack thereof.
9.
immediately following a routine vaginal birth and prior to cutting the umbilical cord.
Dr. Cragun explained Boston “was covered, as many infants are, with vernix caseosa, a
waxy slippery substance composed primarily of sebum,” and noted that according to
Frank’s testimony, Dr. Erickson held Boston no longer than one to two minutes from the
time of spontaneous vaginal birth until he cut the umbilical cord, when he handed Boston
to the nursing staff. Dr. Cragun opined Dr. Erickson’s action in “safely holding” Boston
immediately following the “routine spontaneous vaginal delivery” until he handed Boston
to the nursing staff was “not below the standard of care.”
Dr. Cragun noted Boston’s APGAR scores were within normal limits for a healthy
newborn. In addition, the medical records confirmed there were no fetal or neonatal
complications, no resuscitation efforts were made, and neither pulse oximetry nor
supportive ventilation was needed or provided. Based on these observations, Dr. Cragun
opined Boston could not have been injured by Dr. Erickson holding him as described for
one to two minutes following birth, as that was an insufficient length of time to cause any
brain injury or developmental delays due to any alleged hypoxia or anoxia as the Borbas’
insinuated occurred during this limited timeframe. Moreover, there is no evidence in the
medical records to indicate Boston had any abnormal vital signs or other clinical signs or
symptoms consistent with physical or brain injury, and no indication of concern by
Dr. Erickson or any healthcare provider, including the pediatrician who examined Boston
prior to discharge or the nursing staff.
Dr. Oken, a licensed physician who is board certified in pediatric medicine, opined
to a reasonable degree of medical certainty that: (1) no act or omission during
Dr. Erickson’s course of care caused “any of plaintiffs’ claimed injuries”; (2) the way
Dr. Erickson held Boston, which lasted no longer than one to two minutes, “was an
insufficient length of time to cause any brain injury or developmental delays” as a result
of any alleged hypoxia or anoxia as the Borbas insinuated occurred during this limited
timeframe; and (3) Boston “does not have any evidence of physical injury, brain injury,
10.
developmental injury or delays, or any other injury caused from any care rendered by
Dr. Erickson.” His opinion was based on a number of facts derived from the medical
records and the depositions of the Borbas and a nurse practitioner, including:
(1) Boston’s vital signs, examinations, evaluations, and assessments at the Medical
Center, which were “within normal limits from the time of birth to discharge”;
(2) Boston’s two- and three-year well child examinations, which were “within normal
limits”; and (3) the nurse practitioner’s examination of Boston in January 2017, which
“raised no concern for developmental or speech delays.”9
Dr. Byrne, a licensed physician who is board certified in obstetrics and
gynecology, opined all the obstetrical care and treatment the nursing staff and
Dr. Erickson rendered to Meredith and Boston were within the applicable standard of
care, and no act or omission “caused, to a reasonable medical probability,” any of the
claimed injuries. While “[t]here is no specific ‘standard of care’ as to how an OB/GYN
doctor is supposed to hold the newborn baby immediately following a routine vaginal
birth and prior to cutting the umbilical cord as depicted in the photographs and as
described by the parents,” Dr. Erickson’s actions in holding Boston “immediately
following his routine spontaneous vaginal delivery until handing the baby over to the
[Medical Center] nursing staff were not below the standard of care.” Finally, Dr. Byrne
opined Boston “does not have any evidence of physical injury, brain injury,
developmental injury or delays, or any other injury caused from any obstetrical care
rendered by” the Medical Center or Dr. Erickson.
9 Dr. Oken reviewed the Medical Center’s records pertaining to Meredith and
Boston, as well as Boston’s medical records from UCSF Medical Center, Oak Valley
Hospital and pediatrician Dr. Cajigas. He also reviewed the deposition transcripts of
Meredith and Frank, and Sheila Hernandez-Lee, N.P., who examined Boston in January
2017, as well as color photos marked as exhibits to Meredith’s deposition.
11.
The motion originally was set to be heard on February 8, 2018, with trial set for
April 24, 2018, but was later reset for August 16, 2018, with trial scheduled for
October 30, 2018.
B. The Borbas’ Motion to Compel
In April 2018, the Borbas filed a motion to compel further responses from
Dr. Erickson to their request for production of documents. As pertinent here, the request,
which the Borbas propounded on December 6, 2017, asked for documents related to
communications with the experts who submitted declarations in support of the summary
judgment motion, namely, Drs. Cragun and Oken. Dr. Erickson objected to production of
these documents based on the attorney-client and attorney work product privileges,
explaining that since expert discovery had not occurred, Drs. Cragun and Oken remained
consultants and these privileges therefore applied.
The Borbas argued Dr. Erickson improperly relied on the attorney-client and work
product privileges because Dr. Erickson made Drs. Cragun and Oken testifying experts
by submitting their declarations in support of the summary judgment motion; therefore,
privilege or work product objections were invalid. The Borbas asserted these doctors did
not review all available information, including Dr. Erickson’s deposition and exhibits, as
well as Dr. Erickson’s physician notes regarding Boston’s birth, which made “their
declarations lacking in veracity and based upon untenable facts.” If confronted with
certain admissions in Dr. Erickson’s deposition and written discovery responses, the
doctors “would at least question, if not reevaluate, their own findings.” The Borbas
claimed the requested documents were required so they could depose these doctors to
properly oppose the summary judgment motion. The Borbas sought monetary sanctions
in connection with the motion.
12.
Dr. Erickson opposed the motion, arguing the Borbas were prohibited from
conducting expert witness discovery until the expert consultants were designated and
disclosed as expert witnesses for trial as provided in section 2034.210. He further argued
the Borbas had not met their burden of showing they were entitled to conduct expert
discovery for purposes of opposing the summary judgment motion, as provided in
St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531 (St. Mary).
Finally, Dr. Erickson argued sanctions were inappropriate because the Borbas’ motion
was meritless and, in any event, there was substantial justification for his positions.
The Borbas submitted a two-page reply, in which they argued they were entitled to
“discovery concerning these experts whose declarations are the basis for defendants’
[summary judgment motion],” in order “to demonstrate there are [] triable issues of fact
requiring denial of the motion.”
The trial court adopted its tentative ruling denying the motion to compel when the
tentative ruling was not contested. In its May 2018 order, the trial court stated it
determined the Borbas were not entitled to further responses as they did not present any
“objective facts that Dr. Cragun or Dr. Oken’s ‘opinions’ are based on incorrect facts—
which was the deciding factor in St. Mary[].” Instead, “[a]t most” the Borbas contended
the experts “did not review everything they ‘should have reviewed’ ” in rendering their
opinions, but they did not argue the experts’ assumptions about the facts of the labor and
delivery were wrong or the evidence they claim the experts should have reviewed would
actually refute the assumptions made in their declarations. To the contrary, there did not
appear to be any dispute as to what happened during the labor and delivery; rather, the
dispute was directed at whether Dr. Erickson’s actions were within the medical standard
of care.
C. The Opposition to the Summary Judgment Motion
The Borbas filed their opposition to the summary judgment motion on August 2,
2018. The Borbas argued summary judgment must be denied because the evidence
13.
established: (1) Boston was injured because he became cyanotic as a result of
Dr. Erickson holding him “solely by the neck”; (2) Dr. Erickson breached his duty of
care to Boston by holding him by the neck; (3) Meredith was entitled to recover as a
direct victim of Dr. Erickson’s negligence; (4) Meredith and Frank both were entitled to
recover under a bystander theory of liability because they were present during the
delivery and witnessed Dr. Erickson injuring Boston; and (5) Meredith’s emotional
injuries were causally attributed to watching Boston turn blue while Dr. Erickson was
holding him by the neck as her pleas to stop went unheeded.
The Borbas submitted the declaration of Kristeen Klaas, R.N., in support of their
opposition. Klaas had been a registered nurse since 1978 and worked as a charge nurse
in the operating room at San Leondro Hospital. She had been certified in advanced and
basic cardiac life support since 1978. She had previous experience as a respiratory
therapy technician and had worked in an “ICU Cardiopulmonary Unit” for 12 years, a
“GI lab” for 10 years, and a “PACU”10 for 15 years. She was “CPAN Certified,” went to
“Operating Room School,” and obtained a “Pediatric Advanced Life Support (‘PALS’)
certification.” She had worked in the operating room for 15 years. Although she did not
state she had any training or experience in labor and delivery or neonatal medicine, she
claimed to be “familiar with the standards of care owed to all patients, including
delivering mothers and their babies, upon admission to a hospital, as well as throughout
the labor and delivery process.” She also claimed to be “familiar with the standards of
care in how to hold and assess newborns,” and “how injuries and patient complaints
should be charted.”
Klaas had been consulted as an expert witness for the Borbas. She was asked to
evaluate the care Dr. Erickson rendered to Meredith and Boston, surrounding the
circumstances of the labor and delivery, and formulate expert opinions regarding his
10 According to respondents, a PACU is a post-anesthesia care unit.
14.
compliance with the standard of care. Klaas stated that based on her over 30 years of
experience working as a registered nurse in acute care hospitals, she was “knowledgeable
about the standards of care for doctors, nurses, and the ancillary staff working with them
under the circumstances pertinent to the litigation.”
Based on her education, training and experience in the field of acute hospital care
nursing and her review of the medical records and depositions of the Borbas and
Dr. Erickson, Klaas opined the following: (1) Dr. Erickson breached the standard of care
owed Boston by holding him around the neck for one to two minutes following delivery;
(2) when Dr. Erickson held Boston by the neck, Boston became cyanotic, defined as
bluish or purplish discoloration of the skin or mucous membranes due to tissues near the
skin surface having low oxygen saturation, which is a definite sign that respiration is
being blocked; (3) there is no medical reason to hold a newborn by the neck during
delivery, particularly for one to two minutes “with the fingers grasping almost entirely
around the neck,” which can cause cyanosis and block blood flow from the carotid artery
to the brain; and (4) in her medical opinion, it was below the standard of care for a
doctor, nurse, or any staff member participating in a labor and delivery to hold a newborn
by the neck for one to two minutes.
Klaas further opined Dr. Erickson breached the standard of care owed Boston and
Meredith by failing to record in the medical records the following: (1) complete APGAR
score information; (2) that he held Boston solely by the neck for one to two minutes after
delivery; and (3) Meredith’s complaints. In Klaas’s opinion, an APGAR score of seven
is outside the normal limits and concerning because it indicates the newborn is
experiencing problems or injuries in one or more categories.
The Borbas also submitted photographs of Boston’s delivery taken by Boston’s
grandmother, Lisa Evans, who was present during the delivery. Evans declared that one
of the photographs showed Dr. Erickson holding Boston solely by the neck during his
delivery.
15.
The Borbas filed a written objection to respondents’ request for judicial notice of
the declaration of Dr. Byrne, arguing it was not the proper subject of judicial notice.
They also filed a “Separate Statement of Additional Material Facts” (unnecessary
capitalization omitted), which contained 84 facts they contended established genuine
issues of material fact existed that precluded summary judgment or adjudication.
D. Respondents’ Reply
In their reply, respondents argued the Borbas failed to submit admissible expert
opinion on the question of whether there had been a breach of the standard of care.
Specifically, they argued Klaas was not qualified to opine as to the standard of care of a
delivering board-certified obstetrician/gynecologist and whether there was a breach of
that standard; therefore, her declaration was insufficient to counter the declarations of the
two board-certified physicians. Respondents also argued that because Klaas failed to
opine about causation as to the Borbas’ alleged injuries, the opinions of Drs. Oken and
Cragun that Dr. Erickson did not cause any of the Borbas’ alleged injuries must be
accepted as conclusive. Finally, respondents argued Klaas was not qualified to opine
about, or diagnose, an injury to Boston.
Respondents filed written objections to Klaas’s declaration. Respondents first
argued the declaration was neither competent nor admissible under Evidence Code
section 720 because Klaas was not qualified to render the opinions stated in her
declaration. Respondents asserted proof of the breach of the standard of care of a
healthcare provider, as well as proof the injury was caused by negligence, required
testimony from medical experts, but Klaas was not qualified to render expert opinions on
either issue as to the medical care and treatment Dr. Erickson provided. Respondents
argued that while Klaas may offer expert testimony regarding the standard of practice in
the field of nursing, because she was not a physician or specialist, her statements
16.
regarding the standard of care applicable to physician specialists were inadmissible
because they were conclusory, ambiguous, and unintelligible.
Respondents also objected to Klaas’s declaration on the ground it lacked
foundation because it did not establish a sufficient basis for her conclusory opinions or
what she relied on in forming them. Respondents argued her declaration failed to state
with particularity the matters upon which her opinions were based, included irrelevant
and inadmissible opinions, and was speculative on its face.
E. The Trial Court’s Ruling
The trial court issued a tentative ruling to grant the motion, explaining there
was no question the case involved an issue of medical negligence with respect to
Dr. Erickson’s actions and any alleged resulting injury Boston suffered. Respondents’
moving pleadings, including the expert declarations of Drs. Cragun and Oken,
demonstrated there was no triable dispute of material fact that Dr. Erickson’s actions in
holding the Borbas’ son around the neck without supporting the rest of his body fell
within the community standard of care, and no act or omission by Dr. Erickson caused
Boston injury, as that term is legally defined. While the Borbas attempted to dispute
these expert opinions with Klaas’s declaration, the trial court sustained respondents’
objections to her declaration, as her opinion of Dr. Erickson’s actions could not create a
conflict sufficient to prevent the motion from being granted. The trial court noted it need
not judge whether Dr. Erickson’s bedside manner was appropriate, as that issue was not
properly before it.
The hearing on the motion was held on August 16, 2018. After noting the issues
were whether a negligent infliction of emotional distress claim sounded in malpractice or
ordinary negligence, and whether Klaas had the background and training to qualify as an
expert so she could opine on Dr. Erickson’s behavior, the trial court stated it tentatively
believed expert testimony was required and Klaas’s declaration did not create a triable
issue because she is not an obstetrician/gynecologist. The trial court added it sustained
17.
respondents’ objections on all grounds. The Borbas’ attorney argued injury was not
needed for a negligent infliction claim, Klaas qualified as an expert due to her many years
of experience, and the Borbas were not claiming professional negligence. The Borbas’
attorney asserted the jury should decide whether ordinary versus professional negligence
applied. The trial court, however, believed it had to decide that issue. The attorney
responded that was the trial court’s purview, but expert testimony was unnecessary
because they pled all the facts needed for a “negligent claim,” and even if expert
testimony were required, Klaas “is an expert having seen so many births.”
The Borbas’ attorney requested a continuance under section 437c, subdivision (h),
should the trial court confirm the tentative ruling, to allow them to present an “OB/GYN
declaration or other evidence.” The attorney stated the request was not made earlier
because they did not feel it was necessary given Klaas’s many years of experience.
While the Borbas’ attorney believed the request was timely, respondents’ attorney
disagreed and asserted the Borbas had every opportunity to conduct discovery, as the
motion had been pending for 10 months, but they chose not to.
The trial court stated it was going to confirm its tentative ruling in its entirety and
grant the motion; in addition, the trial court denied the request for a continuance as
untimely. The trial court subsequently issued a written order granting the summary
judgment motion, denying the request for a continuance, sustaining respondents’
objections to evidence in their entirety, and ordering judgment be entered in respondents’
favor. Judgment later was entered in respondents’ favor, who were awarded their costs of
suit.
DISCUSSION
I. The Summary Judgment Motion
A. Standard of Review
Summary judgment is proper only if there is no triable issue of material fact and
the moving party is entitled to judgment as a matter of law. (§ 437c, subds. (c), (f).) As
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moving defendants, respondents had the initial burden to show the negligent infliction of
emotional distress claim was without merit by showing one or more elements cannot be
established. (§ 437c, subd. (p)(2).) Once respondents met their initial burden, the burden
shifted to the Borbas to produce evidence demonstrating the existence of a triable issue of
material fact. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the
Borbas were unable to do so, respondents were entitled to summary judgment as a matter
of law and the motion was properly granted. (Kincaid v. Kincaid (2011) 197 Cal.App.4th
75, 82.)
On appeal, our task is to independently determine whether a triable issue of
material fact exists and whether the moving party is entitled to summary judgment as a
matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) We consider all
the evidence set forth in the moving and opposing papers, except that as to which
objections have been made and sustained. (§ 437c, subd. (c).) “We independently
review the parties’ papers supporting and opposing the motion, using the same method of
analysis as the trial court. Essentially, we assume the role of the trial court and apply the
same rules and standards.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) In so
doing, we liberally construe the opposing party’s evidence, strictly construe the moving
party’s evidence, and resolve all doubts in favor of the opposing party. (Johnson v.
American Standard, Inc. (2008) 43 Cal.4th 56, 64; Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.) “There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.” (Aguilar
v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.)
B. Negligent Infliction of Emotional Distress
“Negligent infliction of emotional distress is a form of the tort of negligence, to
which the elements of duty, breach of duty, causation and damages apply. The existence
of a duty is a question of law.” (Huggins v. Longs Drug Stores California, Inc. (1993)
19.
6 Cal.4th 124, 129 (Huggins).) There are two theories of recovery for negligent infliction
of emotional distress—the bystander theory and the direct victim theory; the distinction
between the two is found in the source of the duty the defendant owed the plaintiff.
(Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071, 1072 (Burgess).) As our
Supreme Court has explained: “ ‘Bystander’ claims are typically based on breach of a
duty owed to the public in general [citation],[11] whereas a right to recover for emotional
distress as a ‘direct victim’ arises from the breach of a duty that is assumed by the
defendant or imposed on the defendant as a matter of law, or that arises out of the
defendant’s preexisting relationship with the plaintiff.” (Huggins, at pp. 129–130.)
A mother may recover damages for emotional distress as a direct victim of
medical malpractice inflicted upon her child during childbirth. (Huggins, supra,
6 Cal.4th at p. 131, citing Burgess, supra, 2 Cal.4th 1064.) In that situation, the
obstetrician owes a duty of care to both the mother and her fetus arising from the
physician-patient relationship, and “[a]ny negligence during delivery which causes injury
to the fetus and resultant emotional anguish to the mother … breaches a duty owed
directly to the mother.” (Burgess, supra, 2 Cal.4th at pp. 1075–1076.)
In such a case, the mother’s “claim for emotional distress damages may simply be
viewed as an ordinary professional malpractice claim, which seeks as an element of
damage compensation for her serious emotional distress. The elements of a claim for
professional negligence incorporate a specific standard of care into the elements of a
negligence claim. ‘The elements of a cause of action in tort for professional negligence
11 As our Supreme Court explained in Burgess, bystander cases “ ‘arise in the
context of physical injury or emotional distress caused by the negligent conduct of a
defendant with whom the plaintiff had no preexisting relationship, and to whom the
defendant had not previously assumed a duty of care beyond that owed to the public in
general.’ [Citation.] In other words, bystander liability is premised upon a defendant’s
violation of a duty not to negligently cause emotional distress to people who observe
conduct which causes harm to another.” (Burgess, supra, 2 Cal.4th at pp. 1072–1073.)
20.
are: (1) the duty of the professional to use such skill, prudence and diligence as other
members of his profession commonly possess and exercise; (2) a breach of that duty;
(3) a proximate causal connection between the negligent conduct and the resulting injury;
and (4) actual loss or damage resulting from the professional’s negligence.’ ” (Burgess,
supra, 2 Cal.4th at p. 1077.)
When the plaintiff is not the defendant’s patient, however, courts have not
extended the direct victim cause of action to emotional distress derived solely from
reaction to another’s injury. (Huggins, supra, 6 Cal.4th at p. 131.) As our Supreme
Court noted in Burgess, “the physician-patient relationship critical to a mother’s cause of
action is almost always absent in a father’s claim” for negligent infliction of emotional
distress resulting from injuries to his child during birth; therefore, it “appears that a father
must meet the criteria” for bystander recovery to state a viable claim. (Burgess, supra,
2 Cal.4th at p. 1078, fn. 8.) In that situation, recovery of emotional distress damages is
allowed “ ‘only if the plaintiff: (1) is closely related to the injury victim, (2) is present at
the scene of the injury-producing event at the time it occurs and is then aware that it is
causing injury to the victim and (3) as a result suffers emotional distress beyond that
which would be anticipated in a disinterested witness.’ ” (Id. at p. 1073, citing Thing v.
La Chusa (1989) 48 Cal.3d 644, 647.)
To recover as a bystander, there must be negligent conduct by the defendant that
caused injury to the victim. (Holliday v. Jones (1989) 215 Cal.App.3d 102, 111 [to
recover as a bystander, the plaintiff must “personally witness a negligently caused
physical injury to a closely related primary victim”]; CACI No. 1621 [instruction on
essential factual elements of negligence claim seeking recovery of damages for emotional
distress as a bystander; first element requires the plaintiff to prove the defendant
negligently caused injury to, or death of, the victim].)
C. Respondents Met Their Initial Burden
21.
In their summary judgment motion, respondents contended the Borbas could not
establish three elements of their negligent infliction of emotional distress claim:
(1) breach of the standard of care; (2) injury to Boston; and (2) causation. Specifically,
respondents argued the expert declarations of Drs. Cragun and Oken established
Dr. Erickson did not violate the standard of care and there was no causal relationship
between his actions and any alleged injury to Meredith or Boston. Based on this,
respondents argued neither Meredith nor Frank could recover as a direct victim—Frank
because he did not have a preexisting relationship with Dr. Erickson and Meredith
because Dr. Erickson was not negligent, Boston was not injured, and any emotional
distress she experienced was not causally connected to Dr. Erickson. Respondents
argued the Borbas could not recover as bystanders, since Dr. Erickson did not commit a
negligent act and Boston was not injured.
As we set out above, both the direct victim and bystander theories require a
showing that the defendant breached his or her duty and caused injury to the victim,
namely, Boston. Since the Borbas are suing for emotional distress resulting from
Dr. Erickson’s provision of services as an obstetrician during Boston’s delivery, his duty
must be measured by the standard of care for professionals, namely, “ ‘the duty of the
professional to use such skill, prudence and diligence as other members of his profession
commonly possess and exercise.’ ” (Burgess, supra, 2 Cal.4th at p. 1077.) This is
equally true for recovery under the bystander theory, since the Borbas must show
Dr. Erickson negligently caused injury to Boston. Since Dr. Erickson is a medical
specialist, his duty was to use the skill, prudence, and diligence commonly possessed and
exercised by obstetricians. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968
(Lattimore).)12
12 The Borbas contend in their reply brief that because they alleged Dr. Erickson
“breached the duty of care owed by any medical professional who is present during labor
and delivery,” the applicable standard of care is that of a medical professional. In making
22.
The standard of care “can only be proved by expert testimony, unless the
circumstances are such that the required conduct is within the layperson’s common
knowledge.” (Lattimore, supra, 239 Cal.App.4th at p. 968.) Thus, where, as here, the
plaintiff claims negligence in a medical context, the plaintiff must present evidence from
an expert that the defendant breached his or her duty and the breach caused the injury to
the plaintiff. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 (Powell).)
Here, respondents presented evidence that Dr. Erickson did not breach the
standard of care when he held Boston solely by the neck immediately after his delivery.
While Drs. Cragun and Byrne stated there was no specific standard of care as to how an
obstetrician should hold a newborn immediately following a routine vaginal birth and
prior to cutting the umbilical cord, they opined it was not below the standard of care for
Dr. Erickson to hold Boston for one to two minutes between those two events as depicted
in the photographs and described by the parents. Drs. Cragun, Oken and Byrne each
opined Dr. Erickson could not have injured Boston by holding him as described for one
to two minutes following birth, as that was an insufficient length of time to cause brain
injury or developmental delay.
This evidence was sufficient to show the Borbas could not establish necessary
elements of their negligent infliction of emotional distress claim, namely, breach of the
standard of care and injury to Boston. (See Powell, supra, 151 Cal.App.4th at p. 123 [a
defendant who supports his summary judgment motion with expert declarations that his
this argument, however, the Borbas cite to the superseded fourth amended complaint.
The operative fifth amended complaint does not contain any such allegation. Moreover,
since Dr. Erickson’s duty derives from his provision of medical services as an
obstetrician, Dr. Erickson was required to use the skill, prudence, and diligence possessed
and exercised by obstetricians. (Lattimore, supra, 239 Cal.App.4th at p. 968.)
23.
conduct fell within the community standard of care, “ ‘ “is entitled to summary judgment
unless the plaintiff comes forward with conflicting expert evidence” ’ ”].)13
D. The Borbas Did Not Create a Triable Issue of Material Fact
Since respondents made a prima facie case the Borbas would not be able to prove
breach or injury to Boston, the burden shifted to the Borbas to produce evidence that
would create a triable issue of fact on these issues. As we have stated, expert testimony
is required to establish the applicable standard of care, breach, and causation. Like
respondents, the Borbas were required to present expert opinions in their opposition in
order to create triable issues of fact.
In support of their opposition, the Borbas only provided Klaas’s declaration.
Klaas identified herself as a registered nurse with extensive experience in acute care
hospitals, but with no apparent training or experience in labor and delivery or neonatal
medicine. Klaas nevertheless stated she was familiar with the standards of care owed
delivering mothers and their babies throughout the labor and delivery process, as well as
the standard of care on how to hold and assess newborns. Klaas opined Dr. Erickson
breached the standard of care owed Boston by holding him around the neck for one to
two minutes following delivery, which caused him to become cyanotic, and there was no
medical reason to hold a newborn that way because it can cause cyanosis and block blood
flow from the carotid artery to the brain. In Klaas’s medical opinion, it fell below the
standard of care for a doctor, nurse, or any staff member participating in a patient’s labor
and delivery to hold a newborn by the neck for one to two minutes.
13 While the Borbas assert respondents failed to meet their initial burden, they do not
support their claim with any reasoned argument. As such, we treat the issue as forfeited.
(Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 [“[w]hen an
appellant asserts a point but fails to support it with reasoned argument and citations to
authority, we treat the point as forfeited.”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each
point must be separately headed and supported by argument and authority if available].)
24.
Respondents objected to Klaas’s declaration on the grounds it was not competent
or admissible under Evidence Code section 720 because Klaas was not qualified to render
the opinions stated therein and the declaration lacked foundation. The trial court
sustained these objections. On appeal, the Borbas argue the trial court improperly
weighed the evidence and determined respondents’ experts were more credible than their
expert, Klaas. Although summary judgment rulings are reviewed de novo, we review the
trial court’s evidentiary rulings for abuse of discretion. (Powell, supra, 151 Cal.App.4th
at p. 122; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)
A party opposing a summary judgment motion may use an expert’s declaration to
raise a triable issue of fact “provided the requirements for admissibility are established as
if the expert were testifying at trial.” (Towns v. Davidson (2007) 147 Cal.App.4th 461,
472.) The question of whether a witness qualifies as an expert is ordinarily a matter
addressed to the sound discretion of the trial court. (Brown v. Colm (1974) 11 Cal.3d
639, 646–647.) The trial court abuses its discretion “if the witness has disclosed
sufficient knowledge of the subject to entitle his opinion to go before the jury. [Citation.]
Indeed, the exclusion of the sole expert relied upon by a party because of an erroneous
view of his qualifications is, in a case where expert testimony is essential, an abuse of
discretion as a matter of law requiring reversal.” (Id. at p. 647.)
In determining a witness’s qualifications to render expert opinion testimony, the
test is whether the witness “ ‘has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his testimony
relates.’ ” (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701,
quoting Evid. Code, § 720, subd. (a).) When the witness shows sufficient knowledge of
the subject to establish the witness’s testimony would likely help the jury in its search for
the truth, the question of the degree of the witness’s knowledge goes more to the
testimony’s weight than its admissibility. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38,
overruled on another point in Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536,
25.
543; Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1443.) When
considering the declarations of the parties’ experts on summary judgment, we liberally
construe the declarations of the plaintiff’s experts and resolve any doubts as to the
propriety of granting the motion in favor of the plaintiff. (Powell, supra, 151
Cal.App.4th at pp. 125–126.)
Even liberally construing Klaas’s declaration, it is insufficient to create a triable
issue of fact because she failed to state facts to establish foundation for her expertise to
provide opinions on the standard of care and whether Boston was injured. To establish
her authority to provide an opinion regarding Dr. Erickson’s medical negligence and any
resulting injury to Boston, Klaas’s declaration must contain facts showing she had the
training, experience, or necessary skill to render an opinion regarding obstetrical and
neonatal medicine. Although Klaas was a registered nurse with extensive experience in
acute care hospitals, she did not state she had any training or experience in labor and
delivery or neonatal medicine. For this reason, her general statements that she was
familiar with the standards of care owed delivering mothers and their babies, the standard
of care in how to hold and assess newborns, and the standards of care for doctors under
the circumstances pertinent to this litigation, are conclusory and the declaration was of no
evidentiary value on the questions of negligence or injury.
While respondents contend that only a physician may render an opinion on the
standard of care of another physician, the Borbas assert that is not the case and the only
question was whether Klaas’s testimony was likely to assist the trier of fact. We agree
that, depending on the facts of the case and the specific issues that require expert
testimony, someone other than a medical doctor can be an expert on medical issues.
(People v. Catlin (2001) 26 Cal.4th 81, 131–132 [“[q]ualifications other than a license to
practice medicine may serve to qualify a witness to give a medical opinion”], overruled
on another ground in People v. Nelson (2008) 43 Cal.4th 1242, 1253–1256.)
Nonetheless, the person making the expert declaration or testifying as an expert must
26.
show they are qualified to provide an opinion on the subject matter. Klaas’s declaration
is deficient in this regard: she lacks the training and experience to provide an opinion
regarding the standard of care an obstetrician would use when delivering a newborn
following a routine vaginal birth and before cutting the umbilical cord, and whether
holding a newborn by the neck for one to two minutes would cause injury.
The Borbas argue the only reason the trial court excluded Klaas’s declaration was
because she was a registered nurse, which was not a reasonable basis to exclude her
testimony; therefore, the trial court’s exclusion of their only expert witness clearly
constituted an abuse of direction warranting reversal. This was not the only basis for the
trial court’s exclusion, however, as the trial court sustained respondents’ objections to
Klaas’s declaration based not only on her qualifications, but also on the ground the
declaration lacked foundation because it did not establish a sufficient basis for her
opinions or what she relied on in forming them. Even if it was the only basis, we review
results, not reasons. (Green v. Superior Court (1985) 40 Cal.3d 126, 138 [it is a “settled
principle of appellate review that a correct decision of the trial court must be affirmed on
appeal even if it is based on erroneous reasoning”]; D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 19.) As we have explained, the trial court did not abuse
its discretion in excluding Klaas’s declaration.
Without Klaas’s declaration, the Borbas did not have any expert testimony on the
issues of standard of care or injury. Accordingly, they have not presented a triable issue
of material fact on their claims for negligent infliction of emotional distress by either
direct victims or bystanders.
The Borbas argue for the first time on appeal in their reply brief that expert
testimony on the standard of care is not required because it is common knowledge not to
hold a newborn solely by the neck.14 It is true that the testimony of qualified experts is
14 We note that we are not obliged to consider arguments or theories that the Borbas
did not advance in the trial court. (DiCola v. White Brothers Performance Products, Inc.
27.
not necessary if “the conduct required by the particular circumstances is within the
common knowledge of the layman.” (Flowers v. Torrance Memorial Hospital Medica
Center (1994) 8 Cal.4th 992, 1001.) “The ‘common knowledge’ exception is principally
limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e.,
when a layperson ‘is able to say as a matter of common knowledge and observation that
the consequences of professional treatment were not such as ordinarily would have
followed if due care had been exercised.’ [Citations.] The classic example, of course, is
the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.]
Otherwise, ‘ “expert evidence is conclusive and cannot be disregarded.” ’ ” (Ibid., fn.
omitted.)
Here, the Borbas claim Dr. Erickson was negligent because he held Boston solely
from the back of the neck. The Borbas assert it is common knowledge not to hold a
newborn that way, since any teenage babysitter knows this is an unacceptable way to
hold a baby and Medical Center registered nurse Shelley Neal testified she did not recall
being taught in school not to use a newborn’s neck as the sole support. But here, the
purportedly negligent conduct occurred, not when a teenager is babysitting a newborn or
a nurse is handling a baby in the hospital nursery, but rather during a routine vaginal
delivery, when Dr. Erickson was cutting the umbilical cord. The proper way to handle a
baby during delivery is not a matter within a layperson’s common knowledge. Therefore,
(2008) 158 Cal.App.4th 666, 676 [the rule that an argument or theory will not be
considered if raised for the first time on appeal applied to the appellate review of
summary judgments; therefore, “ ‘possible theories that were not fully developed or
factually presented to the trial court cannot create a “triable issue” on appeal’ ”].) We
also need not consider this argument because appellate courts have concluded issues first
raised in a reply brief will not be considered absent a showing of good cause for delay.
(Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172,
1181, fn. 3 [“Consistent with well-established authority, absent justification for failing to
present an argument earlier, we will not consider an issue raised for the first time in a
reply brief.”].)
28.
the Borbas cannot rely on the common knowledge exception as a defense against
summary judgment.
The Borbas also contend for the first time on appeal in their reply brief that in
addition to Klaas, they presented expert testimony from three other “qualified experts,”
namely, Dr. Erickson, nurse Neal, and Meredith. They assert that testimony from any
one of these individuals was sufficient to defeat summary judgment. Since they failed to
raise this issue in the trial court and only asserted it for the first time in their reply brief,
we need not consider it. Moreover, none of these individuals submitted a declaration
establishing their credentials as experts and the deposition excerpts that the Borbas
submitted in opposition to their motion do not establish this.15
We understand people in the Borbas’ situation might feel distressed. The standard
of care when delivering a baby, however, is to be measured by the standard of care of a
medical professional. Respondents established that Dr. Erickson did not breach the
standard of care through the declarations of their medical doctors, shifting the burden of
producing evidence to create a triable issue of fact to the Borbas. Because Klaas’s
declaration was insufficient to create a triable issue of material fact and the Borbas
provided no other evidence of medical negligence, we have no choice but to affirm the
15 None of the testimony the Borbas cite establishes that any of these individuals
offered an opinion on the standard of care applicable to this case and breach of that
standard. That Dr. Erickson admitted holding Boston solely by the neck does not
establish the applicable standard of care or breach of that standard. While the Borbas cite
Dr. Erickson’s written discovery responses could be used to establish negligence, those
responses were not presented with respect to the summary judgment motion, but rather
the motion to compel. While Neal, who had been a registered nurse since 1992 and
worked at the Medical Center as a postpartum nurse, testified she did not recall ever
seeing a physician hold a baby by the neck during delivery and she had never held a baby
that way, she did not testify it was below the standard of care for an obstetrician to hold a
baby solely by the neck under the circumstances of this case. Finally, Meredith’s
observations of Dr. Erickson’s conduct and its effect on Boston do not establish that
Dr. Erickson acted below the standard of care.
29.
trial court’s grant of summary judgment on the ground the Borbas cannot prove breach of
the standard of care. Accordingly, we do not decide the other grounds respondents raised
to support the motion, such as whether the Borbas had contemporaneous awareness of an
injury-producing event because Dr. Erickson did not injure Boston.
II. The Demurrer
The Borbas contend the trial court erred when it sustained respondents’ demurrer
to their intentional infliction of emotional distress claim alleged in the fourth amended
complaint.16
Intentional infliction of emotional distress requires: (1) extreme and outrageous
conduct by the defendant; (2) that the defendant intended to cause, or recklessly
disregarded the probability of causing, emotional distress; (3) severe emotional distress;
and (4) actual and proximate causation of emotional distress by the defendant’s
outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050; Nally v. Grace
Community Church (1988) 47 Cal.3d 278, 300.) “A defendant’s conduct is ‘outrageous’
when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized
community.’ ” ’ ” (Hughes v. Pair, at pp. 1050–1051.)
In their intentional infliction of emotional distress claim, the Borbas alleged
Dr. Erickson’s conduct of holding a baby by the neck with such force that he turned blue
was “conduct outside the bounds of conduct tolerated by any reasonable member of
society,” “so extreme in degree that it exceeded all possible bounds of decency,” and
“atrocious and utterly intolerable in any civilized community.” They specifically alleged
16 The Borbas also mention that the trial court granted respondents’ motion to strike
the photo of Dr. Erickson “choking” Boston that was published in the fourth amended
complaint. To the extent the Borbas intend to argue the trial court erred in granting the
motion to strike, they do not make any reasoned argument or cite to any authority to
support any such claim. As such, we treat the issue as forfeited. (Tellez v. Rich Voss
Trucking, Inc., supra, 240 Cal.App.4th at p. 1066; Cal. Rules of Court, rule
8.204(a)(1)(B).)
30.
there was “no excuse for a medical professional to grasp a baby by the neck, in anger
or otherwise, depriving it of oxygen during its birth.” They further alleged:
(1) Dr. Erickson “acted with reckless disregard of the probability” that they “would
suffer emotional distress, knowing that [they] were present when the conduct occurred”;
(2) they “suffered severe emotional distress … at being forced to watch their baby be
deprived of oxygen immediately upon his birth”; and (3) Dr. Erickson’s “conduct was a
substantial factor in causing this severe emotional distress.”
In their demurrer, respondents argued none of the elements were pled with
particularity and the allegations were conclusory. On appeal, the Borbas argue they pled
sufficient facts to satisfy each element of their intentional infliction of emotional distress
claim.
We need not decide whether the trial court erred in sustaining the demurrer
because any error was harmless. Had the claim survived demurrer, it necessarily would
have failed on summary judgment. (See Cal. Const., art. VI, § 13; Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 800 [“ ‘[A] “miscarriage of justice” should be declared only
when the court, “after an examination of the entire cause, including the evidence,” is of
the “opinion” that it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error’ ”]; see also Grell v. Laci Le
Beau Corp. (1999) 73 Cal.App.4th 1300, 1307 [error harmless when subsequent
summary judgment on statute-of-limitations grounds would have disposed of claims
erroneously dismissed on demurrer]; Curtis v. Twentieth Century-Fox Film Corp. (1956)
140 Cal.App.2d 461, 464–465 [when two claims were based on the same factual
allegations, plaintiff was not prejudiced by erroneous ruling sustaining a demurrer to one
claim when the second claim was resolved against plaintiff after trial].)
The Borbas’ negligent and intentional infliction of emotional distress claims were
based on the same factual allegations. The undisputed facts on the summary judgment
motion established Dr. Erickson acted within the standard of care when he held Boston
31.
by the neck following his delivery and before cutting the umbilical cord. The provision
of medical services in accordance with the standard of care is not outrageous under the
applicable standard, which requires conduct to be so extreme as to exceed all bounds
usually tolerated in a civilized society. (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050–
1051.) If it was error to sustain the demurrer as to the intentional infliction of emotional
distress claim, the error obviously was not prejudicial.
III. The Motion to Compel
The Borbas contend the trial court erred in denying their motion to compel
discovery of documents related to communications with Drs. Cragun and Oken because,
regardless of whether they were formally disclosed as experts, Dr. Erickson forfeited the
right to shield communications with them from discovery by relying on their opinions in
support of the summary judgment motion. The Borbas assert that by submitting their
declarations in support of the summary judgment motion, respondents made these doctors
testifying experts subject to pretrial discovery.
Ordinarily, until a party’s consultants are designated to testify as expert witnesses,
their opinions and reports are not discoverable. (§§ 2034.210, 2034.410, 2034.415;
County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654–655 [an expert
consultant’s work is protected by the attorney work product privilege, but once it appears
reasonably certain the expert will testify as a witness on a material matter in dispute, the
privilege no longer applies and the expert’s opinions are subject to discovery and
disclosure].) The requirements for disclosure of expert witness information are set forth
in sections 2034.210 through 2034.720. After an initial trial date has been set in an
action, “any party may obtain discovery by demanding that all parties simultaneously
exchange information concerning each other’s expert trial witnesses.” (§ 2034.210.)
Upon service of such a demand, “[a]ll parties who have appeared in the action shall
exchange information concerning expert witnesses in writing on or before the date of
exchange specified in the demand,” and produce the designated expert’s “discoverable
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reports and writings” if the demand includes a demand for production of reports or
writings. (§§ 2034.260, 2034.270.) “On receipt of an expert witness list from a party,
any other party may take the deposition of any person on the list[,]” and the expert must
produce any materials called for by the deposition notice. (§§ 2034.410, 2034.415.)
In this case, it appears no demand for exchange of information concerning expert
witnesses had been served when the Borbas propounded the request for production of
documents. Therefore, Dr. Erickson’s communications with Drs. Cragun and Oken were
not discoverable. Nevertheless, “where a party presents evidence that raises a significant
question relating to the foundation of an expert’s opinion filed in support of or in
opposition to a motion for summary judgment or summary adjudication, a deposition
limited to that subject should be allowed.” (St. Mary, supra, 50 Cal.App.4th at p. 1534.)
Whether to compel such a deposition falls within the sound discretion of the trial court
(Id. at p. 1540.)
In St. Mary, the plaintiffs produced a retained medical expert’s declaration in
opposition to the defendants’ summary judgment motion. (St. Mary, supra, 50
Cal.App.4th at pp. 1534–1535.) When the defendants took their motion off calendar and
attempted to depose the expert, the plaintiffs objected, arguing the expert could not be
deposed until the parties exchanged expert witness lists pursuant to former section 2034.
(St. Mary, at pp. 1534–1535; former § 2034 [repealed by Stats. 2004, ch. 182, § 22,
operative July 1, 2005]; see now §§ 2034.010 et seq. [added by Stats. 2004, ch. 182,
§ 23].) The trial court denied the defendants’ ensuing motion to compel the expert’s
deposition. (St. Mary, at p. 1537.)
The appellate court reversed, concluding the trial court abused its discretion in
failing to allow the discovery. (St. Mary, supra, 50 Cal.App.4th at p. 1540.) The
appellate court recognized the juxtaposition of the time requirements of former
section 2034 and section 437c was problematic for litigants in drafting and noticing
effective summary judgment motions, as there was little time to depose opposition
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experts after the designation of experts but before the deadline to notice a summary
judgment motion. (St. Mary, supra, 50 Cal.App.4th at p. 1538.) The appellate court
realized it would defeat the summary procedure’s purpose to recognize a party’s absolute
right to depose anyone providing evidence in support of or opposition to a summary
judgment motion; on the other hand, the concept of a summary procedure would be
defeated if the opposing party were allowed to defeat the motion by less than candid
declarations. (Ibid.) The appellate court, therefore, believed “in proper circumstances
the court should allow a party to a summary proceeding the opportunity to take limited
discovery which may effectively dispose of the proceeding.” (St. Mary, supra,
50 Cal.App.4th at pp. 1538–1539.)
The appellate court believed that situation was present there, as the defendants’
counsel presented information from which a serious question arose as to whether the
plaintiffs’ expert’s declaration was factually incorrect. (St. Mary, supra, 50 Cal.App.4th
at p. 1540.) The court noted it was possible if the expert were deposed, he may concede
his error if confronted with proof he may have been mistaken. (Ibid.) Moreover, the
defendants’ counsel submitted evidence which suggested the bases for the expert’s
conclusions were untenable. (Ibid.) The court cautioned the process should not be
utilized to turn summary proceedings into mini trials. (Ibid.) The court held where a
party presents “objective facts” that “create a significant question regarding the validity
of the affidavit or declaration which, if successfully pursued, will impeach the
foundational basis of the affidavit or declaration in question,” the trial court has the
discretion to allow additional discovery. (Id. at pp. 1540–1541.)
Here, the Borbas do not cite any objective facts that create a significant question
as to the validity of the declarations of Drs. Cragun or Oken which, if successfully
pursued, would impeach the foundational bases of their declarations. The Borbas assert
their declarations lack veracity and were based on untenable facts because they did not
review Dr. Erickson’s deposition, deposition exhibits, and physician notes. The Borbas
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believe if these experts were confronted with admissions in Dr. Erickson’s deposition and
written discovery responses, they would have been led to at least question, if not
reevaluate, their own findings. They specifically cite to Dr. Erickson’s deposition
testimony about one of the photographs of him holding Boston, which he testified:
(1) showed a newborn baby covered with a lot of vernix being wiped off; (2) he held the
baby in the manner depicted in the photograph “[b]ecause it was the only way to hold the
baby at that time,” as the baby “was covered with the vernix” and “was very slippery,”
and he was not able to get ahold of the baby any other way; and (3) it did “appear as
though the baby is being held with the fingers around the neck.” They also cite to
Dr. Erickson’s written discovery responses, in which he admitted he did not possess any
documents that supported his contention he acted within the standard of care with respect
to the care he provided Meredith, Boston, or Frank.
We fail to see how Dr. Erickson’s deposition testimony and assertion that he did
not have any documents to show he acted within the standard of care show that the
declarations of Drs. Cragun and Oken were factually incorrect or make their conclusions
untenable. Both Drs. Cragun and Oken declared they reviewed Meredith’s deposition
and the color photo exhibits attached thereto depicting Dr. Erickson holding Boston.
Based on their review of the medical records, the Borbas’ version of events and the
photographs, Dr. Cragun determined Dr. Erickson did not breach the standard of care and
Dr. Oken determined Dr. Erickson did not cause any of Boston’s claimed injuries. It
would not have made any difference had they reviewed Dr. Erickson’s testimony he held
Boston the same way as depicted in the photographs. Moreover, Dr. Erickson’s
explanation as to why he held Boston in that manner, or whether Dr. Erickson possessed
documents showing the standard of care, has no bearing on the opinions of Drs. Cragun
and Oken on the standard of care and injury to Boston.
The Borbas contend St. Mary “was clearly rejected in substance, if not in name” in
DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671. We disagree. In DeLuca,
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the appellate court was reviewing a motion to disqualify opposing counsel based on
allegedly improper conduct between opposing counsel and the movant’s expert witness.
(Id. at pp. 680–681, 686.) In discussing the application of the attorney-client privilege
and work product protection to communications between counsel and an expert witness,
the court explained that while both applied to experts solely retained as a consulting
expert, generally neither will prevent disclosure of statements to, or reports from, a
testifying expert. (Id. at pp. 688–689.) The court further explained that once a testifying
expert is designated as a witness, the attorney-client privilege no longer applies, and
when the expert is expected to testify, the expert’s report becomes discoverable, noting
the discovery statutes provide for the mutual exchange of testifying experts’ reports,
citing section 2034.210, subdivision (c). (DeLuca, at p. 689 & fn. 19.)
Rather than reject St. Mary, DeLuca confirms the attorney-client privilege and
work product protections apply until an expert witness is designated as a witness in
accordance with the discovery statutes. DeLuca did not address the issue presented in
St. Mary, namely, whether expert witness reports are discoverable prior to the
simultaneous exchange of expert witness information when an expert provides a
declaration in connection with a summary judgment motion. The trial court did not abuse
its discretion when it relied on St. Mary and determined the Borbas were not entitled to
the discovery they requested.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
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DE SANTOS, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
MEEHAN, J.
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