Unzueta v. Akopyan, No. B284305 (D2d7, Nov. 18, 2019)
In this med-mal case Plaintiff alleges that an anesthesiologist caused paralysis in her leg by mis-administering an epidural during childbirth. Plaintiff’s appeal raises our procedural issues: a jury selection issue, an issue regarding expert designation, an evidence issue, and a claim of misconduct during closing argument.
1.
This case illustrates that. Doctor’s lawyer exercised six of her seven strikes against Latinx jurors. Plaintiff’s lawyers, however, didn’t raise it. The trial judge—who has been around for a long time and has some criminal experience—flagged the Batson issue. During selection of alternates the following day, the judge found that the first step of the Batson analysis—a prima facie of racial discrimination in the exercise of peremptories—was met. The second step generally requires the striking lawyer to offer a valid, non-discriminatory reason for the strike.
But the trial judge didn’t require Doctor’s lawyer to meet the second step for each juror, because it was “yesterday’s news.” Because Plaintiff failed to raise a Batson issue during voir dire the trial court declined to revisit it. After a defense verdict—the jury found that the standard of care had been breached, but no causation—Plaintiff tried to re-raise the issue in a new trial motion, which was denied. Plaintiff appealed.
The Court of Appeal starts off by explaining the three-step Batson analysis. First, the challenger needs to make a prima facie showing of the use of an impermissible criteria like sex or race. This usually entails showing a pattern. Like in this case, six of the seven peremptories exercised by the Doctor were against Hispanic jurors.
Next, if the court finds a prima facie case, the striker needs to come up with a non-discriminatory justification. It doesn’t need to reach the level of cause. Indeed, it can be weird or idiosyncratic. But the explanation needs to be clear and reasonably specific.
Then in the third step, the court needs to decide if the explanation is credible, and if the challenger has met her burden to show purposeful discrimination.
As a threshold issue, the Court explains that the Plaintiff didn’t forfeit her challenge by failing to object to the first four Hispanic jurors who were struck on the first day. But when the court brought it up, Plaintiff’s counsel agreed. Although not a portrait of clarity, it was clear enough from the record what strikes plaintiff was objecting to, and the suspect classification at issue. And in any event, since the issue came up before jury selection was over and a panel sworn, the purpose of the forfeiture rule was satisfied.
That being the case, the trial court erred in not moving on to step two. Moreover, in applying step two, the trial court should have made the Doctor come up with neutral reasons for all of her strikes of Hispanic jurors, including those exercised the prior day.
The Court orders a limited remand on the Batson issue only. The trial court needs to conduct steps two and three for the six struck Hispanic jurors. Only if there is a finding of purposeful discrimination does there need to be a new trial. That seems a little odd, given the passage of time. But that’s what the case law requires.
2.
On the expert designation issue, Doctor called an expert on causation who had been designated by the Hospital, which settled prior to suit, but who was not designated by Doctor. Plaintiff objected to Doctor calling a witness she had not designated. But Plaintiff deposed the expert before the settlement. Under Code of Civil Procedure § 2034.310, any party can call an expert that has been designated by some other party, so long as the expert was deposed. So Plaintiff’s objection was correctly overruled.
3.
As to the evidence, Doctor was convicted of misdemeanor theft in 1992 and failed to report that in her medical licensing paperwork a few times until the early 2000s. (After that, the licensors asked if she had sustained any new convictions, to which she truthfully answered no.) Plaintiff tried to get that in at trial, but the trial court kept it out under Evidence Code § 352.
The Court finds that keeping out the theft itself was an easy call under § 352. It was a misdemeanor, a long time ago, so it had little bearing on Doctor’s truthfulness.
It finds the licensing misreporting to be a harder call. But it declines to reach the issue because Plaintiff can’t show prejudice. Doctor’s trial testimony was that she met the standard of care. But the jury already found adversely on that element, so if it disbelieved the doctor more it wouldn’t have mattered. Causation, on the other hand, was proven up through experts, so Doctor’s being a liar wouldn’t have helped Plaintiff’s case.
4.
Finally, Doctor’s lawyer said some not very nice things about Plaintiff during closing. Like that she wanted the jury to take the Doctor’s purse and give it to Plaintiff and that Plaintiff wanted to be supported for the rest of her life by Doctor.
Lawyers get a pretty wide berth during closing argument. They can’t say crazy prejudicial things like making unfounded accusations of Nazism, or appeal to sympathy by claiming that a Plaintiff verdict will put the Defendant in the poorhouse or lead to the end of public services. But they are free to hit hard.
The first statement here—in one about the purse—was made in the context of causation and wasn’t over the line. And Plaintiff didn’t object or seek a curative instruction on the second, so an appeal on it was forfeited.
* * *
Reversed in part and remanded for Batson steps two and three.
* One of the federal judges I clerked for was a DA and then, for a very long time, a state court trial judge who mostly handled criminal departments. Californians being a proud people, he was of the habit of referring to the various criminal procedures exclusive by state court case names, which often left us scrambling to figure out things like, “what the hell is Hovey voir dire?” So, FWIW, the state court equivalent to a Batson challenge is called a Wheeler challenge. And, Golden State proud, the California Supreme Court case decided Wheeler eight years before U.S. Supremes decided Batson.