Metropolitan News-Enterprise


Monday, March 30, 2009


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Discovery Sanctions May Be Appealed as Collateral Order, C.A. Rules




An order denying monetary sanctions for a discovery violation may be appealed in a case where there is no final judgment and the ruling might never be reviewable otherwise, the Court of Appeal for this district ruled Friday.

In an opinion on consolidated appeals, Div. Eight affirmed an order granting sculptor and Santa Monica resident Manfred Muller a new trial in his medical malpractice suit against doctors who treated him after a 1999 auto accident. At the same time, the court ruled that it had jurisdiction to hear Muller’s appeal from an order denying sanctions for intentional concealment of expert opinion contrary to the defendants’ position, although it affirmed that order on the merits.

Muller, a prolific creator of sculpture and other public art, with studios in his native Düsseldorf as well as Los Angeles, was injured in a rollover accident while driving from Los Angeles to San Francisco on I-5. He was taken by helicopter to what is now Fresno Community Hospital and Medical Center and treated for 13 days before being transferred to Daniel Freeman Hospital and Inglewood.

He was subsequently transferred to UCLA Medical Center, where it was determined that an infection required amputation of his left arm between the elbow and wrist. Muller and his wife, Rose Shoshana, a photographer and owner of the Rose Gallery, sued Fresno Community and Daniel Freeman and several doctors, alleging that the infection was the result of malpractice.

‘Compartment Syndrome’

The plaintiffs’ theory was that the defendants failed to diagnose a “compartment syndrome” where strained muscles expand and the blood running to them is cut off. The condition must be discovered within eight to 24 hours in order to treat it without amputation, experts said.

The defendants denied that any negligence occurred. They insisted that the amputation was necessitated by the injuries sustained in the accident, and that Muller received excellent care, enabling him to largely resume a normal life.

The case has been tried twice in Los Angeles Superior Court. At the first trial, in 2003, the jury found for the defendants, but the Court of Appeal reversed as to Fresno Community and two doctors.

The second trial was held in 2006, after one of the doctors was dismissed. The hospital and the remaining doctor again prevailed on the jury’s verdict.

Judge Cesar Sarmiento, however, granted the plaintiffs’ motion for new trial, concluding that he had erred in not allowing plaintiffs to call a medical expert as a rebuttal witness.

New Trial

After Sarmiento granted the new trial, the plaintiffs moved for monetary discovery sanctions, claiming that the defendants concealed information regarding the testimony of their medical expert. The judge denied the motion, finding that there had been no “sandbagging” on the defendants’ part.

The plaintiffs appealed the denial, and one of the defendants moved to dismiss the appeal. The Court of Appeal denied the motion, but said it might reconsider the issue after briefing was completed.

Justice Madeleine Flier, writing Friday for the court, acknowledged that the issue was “far from settled.” But the better rule, she said, is that a denial of sanctions is appealable under the collateral order doctrine.

Some cases, Flier explained, hold that a collateral order is appealable only if it directs the payment of money or the performance of an act. Others, however, have held that an order disqualifying or denying the disqualification of counsel, granting a creditor’s lien upon a cause of action, or denying a request for pendente lite attorney fees is appealable.

Federal cases, she added, make “absolutely no mention” of any limitation to orders requiring the payment of money or the performance of an act.

Such limitations do not serve the purpose of the doctrine, Flier said. Allowing appeals like Muller’s, she commented, is consistent with those purposes, because the issue of sanctions is irrelevant to the subject of the third trial, and it is not clear that the order denying sanctions would be reviewable on appeal from the ensuing judgment “if there is a third trial.”

Flier cautioned:

“We do not hold that generally all orders denying motions for sanctions are appealable as collateral orders.  In this case, there is no judgment and there may never be a judgment.  Under these circumstances, the order denying the motion for sanctions is appealable as a collateral order.”

The jurist went on to say, however, that the motion was properly denied because “the sanction for attempting to present an expert opinion at trial that was not contained in the expert witness declaration is the exclusion of that expert opinion” rather than a monetary award.

In the unpublished section of her opinion, Flier said there was evidence to support the trial judge’s finding that the plaintiffs were not informed that the defense expert would testify that a compartment syndrome could not have occurred because the amputation occurred below the elbow.

Since an order granting new trial will be overturned only when there is a “strong affirmative showing of an abuse of discretion,” the existence of any evidentiary support for the trial’s judge’s ruling is enough to affirm, Flier said.

The appeal was argued by Albert Peacock of Keesal, Young & Logan for the plaintiffs, by Kenneth Pedroza of Cole Pedroza for the hospital, and by Kent J. Bullard of Greines, Martin, Stein & Richland for the doctor.

The case is Muller v. Fresno Community Hospital & Medical Center, B196684.



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