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Nunes v. Ruder

Dec 29, 2011
F059191, F059723 (Cal. Ct. App. Dec. 29, 2011)


F059191, F059723 Super. Ct. No. 612152


JANET NUNES et al., Plaintiffs and Appellants, v. MICHAEL A. RUDER et al., Defendants and Respondents.

Tabak Law Firm, Stewart M. Tabak; Smith & McGinty, Daniel U. Smith and Valerie T. McGinty for Plaintiffs and Appellants. Galloway, Lucchese, Everson & Picchi, David R. Lucchese and Karen A. Sparks for Defendants and Respondents.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge.

Tabak Law Firm, Stewart M. Tabak; Smith & McGinty, Daniel U. Smith and Valerie T. McGinty for Plaintiffs and Appellants.

Galloway, Lucchese, Everson & Picchi, David R. Lucchese and Karen A. Sparks for Defendants and Respondents.

On September 2, 2005, James Nunes felt a pain in his chest, either while he was exercising or immediately after he stopped exercising. He went to his primary care physician that afternoon and was referred to defendant Michael Ruder, M.D., for further assessment. On September 6, a dual isotopes treadmill myocardial perfusion scan (hereafter the scan) was performed on Nunes at Ruder's direction. Ruder determined the scan was normal and, after examining Nunes, concluded Nunes did not have significant coronary artery disease and followup treatment was unnecessary unless additional symptoms developed. Six weeks later, on October 21, 2005, Nunes died due to complications related to severe coronary artery disease.

As is our custom, we will refer to the decedent as Nunes to ease the reader's task. No disrespect is intended.

Plaintiffs Janet Nunes, Justin Nunes and Allison Nunes (collectively, plaintiffs) are the surviving wife and children of Nunes. They filed a complaint containing a single cause of action alleging that Ruder was negligent in his care and treatment of Nunes, which caused Nunes's death. The jury concluded Ruder was not negligent.

Plaintiffs contend the trial court erred in two respects. First, plaintiffs argue the trial court erroneously instructed the jury regarding the testimony of one of their expert witnesses, Dr. Eli Botvinick. We conclude that while the trial court erred in instructing the jury, the error did not result in a miscarriage of justice. Thus, we will affirm the judgment.

Plaintiffs also challenge the trial court's awarding costs to Ruder for expert witness fees pursuant to Code of Civil Procedure section 998. We agree and will vacate this order and remand the matter to the trial court for further consideration.

All further statutory references are to the Code of Civil Procedure unless otherwise stated.


The events leading to Nunes's death are not in dispute. The issue is Ruder's decision not to perform an angiogram. An angiogram is a test that involves inserting a catheter into a vein until it is close to the heart. A dye is then released, which can be observed through imaging techniques. This test is utilized to determine if a coronary artery is blocked. The witnesses agree that had an angiogram been done on Nunes when he was examined by Ruder, the blockages that led to Nunes's death would have been discovered.

We begin with Nunes's relevant medical history. Nunes was taking medication to treat high blood pressure (hypertension) and high cholesterol (hyperlipidemia). He also was overweight. Both of his parents had heart disease, which contributed to their deaths. Each of these facts is a risk factor for coronary artery disease, which is a blockage of the coronary arteries caused by a buildup of plaque.

In August 1993, Nunes reported to his treating physician, Dr. Pattabiraman B. Iyer, that he had been suffering from chest pain for the preceding four days. Iyer performed an electrocardiogram (ECG) and determined that Nunes suffered from pericarditis, an inflammation of the outer lining of the heart.

In 1998, Nunes visited Iyer complaining of chest pain. Iyer was concerned about possible coronary artery disease and investigated accordingly. Nunes was referred to a cardiologist, who placed him on a Holter monitor for a period of 24 hours.Subsequently, a treadmill, or stress ECG, was performed. The results of the stress ECG appeared to be ambiguous but, after speaking with the cardiologist, Iyer concluded the test was normal.

A Holter monitor is a device that records the patient's heartbeat continuously for a period of time, in this case 24 hours.

In June 2005, Nunes visited Iyer for a routine appointment. As part of a later exam, Iyer performed a stress ECG as a screening device for heart disease on July 11, 2005. Iyer interpreted the results as normal.

On September 2, 2005, Nunes returned to Iyer's office. Nunes told Iyer he had been riding his exercise bike and developed chest pain or tightness that lasted for approximately 40 minutes. He also was sweating and nauseous. The pain became worse when Nunes got off his bicycle. These symptoms had abated by the time of the office visit.

Iyer's initial concern was the possibility of heart disease. Iyer performed a resting ECG, the results of which he concluded were normal, but he did not rule out the possibility that Nunes had coronary artery disease. Iyer prescribed a medication that would increase blood flow to the heart. Nitroglycerin and aspirin also were prescribed because of Iyer's concern that Nunes might have coronary artery disease. Iyer believed that an angiogram might be required and discussed this possibility with Nunes.

Iyer called Ruder while Nunes was at his office and faxed to Ruder the results of the ECG he had performed that day. The doctors discussed the course of treatment and Ruder recommended that Nunes come in the following week for a scan, as opposed to an angiogram. The results of the scan would dictate the next step in Nunes's treatment.

After speaking with Iyer, Ruder was concerned that Nunes might have coronary artery disease. If a scan returned abnormal results, Ruder typically would do an angiogram. On September 6, 2005, the date of the testing, Nunes first went to an office in Palo Alto where the scan was conducted. Nunes then drove to Redwood City where he met with Ruder. Before meeting with Nunes, Ruder reviewed the results from the scan and the ECG. Ruder noted some minor changes in the ECG that were not significant, nor indicative of coronary artery disease. Ruder also concluded that Nunes's scan results were normal. Ruder found it significant that Nunes was able to complete the stress test with no chest pain because if the prior pain had been caused by coronary artery disease, Ruder would expect the pain to recur during the test.

After examining Nunes and reviewing the scan results, Ruder told Nunes that it was unlikely the chest pain he experienced was related to coronary artery disease. Ruder advised Nunes that if he had additional complaints, Nunes should call either Iyer or himself, but it was not necessary to schedule any followup appointments at that time. Ruder did not think Nunes's chest pain was caused by an obstruction in the coronary arteries. Ruder did not order a cardiac catheterization (angiogram) because of the risks associated with the test, and there was no evidence that Nunes had severe coronary artery disease.

Dr. Matthew K. Sakata also reviewed Nunes's scan as part of the normal practice for Ruder's medical group. Sakata concluded the scan was normal.

Nunes died suddenly six weeks later due to complications related to severe coronary artery disease.

The issue at trial was whether, after testing and examining Nunes, Ruder should have ordered an angiogram. Both sides presented well-qualified expert witnesses who testified about Ruder's treatment of Nunes. Plaintiffs' experts testified that Ruder's treatment fell below the standard of care because he failed to order an angiogram. These doctors found abnormalities in the ECG and in the scan and opined that the standard of care required an angiogram be performed because of all of the risk factors Nunes had for coronary artery disease.

Ruder's experts testified that Ruder's treatment was within the standard of care because the test results did not indicate Nunes had coronary artery disease and, accordingly, the risk associated with the angiogram outweighed any potential benefit that would be obtained from performing the test. These doctors opined the scan was normal and that Nunes's being able to complete the 12-minute stress test associated with the scan without any chest pain was proof Nunes did not have significant coronary artery disease.

The issue here revolves around Botvinick's testimony, which we now summarize in detail. Botvinick was called as an expert witness by plaintiffs on the third day of testimony. Botvinick is board certified in internal medicine, cardiovascular disease, and nuclear medicine. He explained that the scan performed on Nunes is used to identify the presence or absence of a significant narrowing of a blood supply to the heart. The scan requires the injection of a very small amount of radioactive material into the blood stream. The blood carries the radioactive material to the heart. The radioactive material then attaches itself to the heart in proportion to the amount of blood flow the heart is receiving. A special machine then reads the amount of radioactivity being emitted from the heart. The resulting image tells the cardiologist how much blood is reaching the heart. The test is run twice, once while the patient is resting and once after the patient has exercised, typically a treadmill test. Presumably, if the patient has coronary artery disease, the images will reveal that there is reduced blood flow to the heart because of the blockages in the coronary arteries.

First, Botvinick reviewed the ECG test that had been performed on Nunes two months before the scan; Botvinick also concluded the ECG was normal.

Next, Botvinick related the chest pain episode Nunes suffered on September 2, 2005, as he understood it. Nunes was riding his stationary bicycle for approximately one hour. Either at the end of the exercise period, or immediately after Nunes stopped exercising, Nunes experienced chest pain unlike any he had experienced before. Nunes visited Iyer, who conducted an ECG on September 6, 2005. Nunes was able to complete the treadmill test and tolerated the exercise well. He did not experience any chest pain. Iyer concluded the ECG results were normal. Iyer then contacted Ruder.

Botvinick opined the ECG readings taken while Nunes performed on the treadmill were "clearly abnormal." The failure to read the ECG as abnormal caused Ruder's treatment to fall below the standard of care. The abnormal ECG caused Botvinick to be concerned that there was an inadequate blood flow to Nunes's heart.

When reading the results of the scan, Botvinick opined that he could see why some would read the results as normal but, in his opinion, there were subtle abnormalities that rendered the results abnormal.

Botvinick also opined that the standard of care required Ruder to interpret the scan in association with the stress test. Because the treadmill ECG clearly was abnormal, and there were questionable findings on the scan, a diagnosis for coronary artery disease should not have been dismissed. The ECG suggested reduced blood flow to the heart and the primary diagnosis should have been coronary artery disease.

Botvinick explained that he also received a phone call from Ruder's attorneys after he had been retained by plaintiffs' attorney. Botvinick did not realize that both attorneys had contacted him about the same case, so he agreed to meet with one of Ruder's attorneys. During the meeting Botvinick realized that he was discussing the same case for which he had been retained by plaintiffs' attorney and the meeting was terminated. Before the mistake was realized, Botvinick told Ruder's attorney that he could see how someone would read the scan as normal. Botvinick also stated that it would be unusual for a scan to be interpreted as abnormal if the polar maps were normal.

Ruder's counsel had not completed his cross-examination by the end of that day of trial. Three trial days later, Botvinick was recalled to the stand to complete his testimony. The events occurring on Botvinick's second day of testimony led to the trial court giving the disputed instruction.

After Ruder's counsel completed his cross-examination, plaintiffs' counsel began his redirect examination by reviewing the documents provided to Botvinick prior to trial. Botvinick had received and reviewed exhibit Nos. 14, 15, 16, and 26, which were the images generated from the scan. In addition, he had asked plaintiffs' counsel to obtain a compact disc with the raw data from the scan. When he received the compact disc, he was able to open some files but not other files contained on it. The files he opened contained the same data he had seen previously.

Two days before his second day of testimony, however, Botvinick was able to open the files he could not open previously. Exhibit Nos. 28, 29, 30, and 31 were printed copies of the images that came directly from of the compact disc in an unaltered format. The images on exhibit Nos. 28 and 29 were new to Botvinick, but the data was similar to data he had seen before. The information on exhibit Nos. 30 and 31 was new information.

Botvinick believed that originally he was unable to open the files on the compact disc because the software he used at work was incompatible with the software used in Ruder's practice. He viewed the new images for the first time when he successfully opened the compact disc two days before his second day of testimony. Botvinick noted that his employer, the University of California, San Francisco, had updated its software, including the software on his computer, and that was probably why he was able to open the additional images.

Exhibit Nos. 30 and 31 were polar maps from the scan. Botvinick previously had seen other polar maps from the scan, and those maps were normal. Botvinick assumed that the polar maps he previously had seen were generated from a standard deviation map, but that assumption was incorrect. Botvinick stated that he was misled by the polar maps previously provided. Botvinick explained that exhibit Nos. 30 and 31 clearly were abnormal and demonstrated that Nunes was at risk of death within the next year because of the reduced blood flow to the heart.

One of Ruder's experts, Dr. John Joseph Mahmarian, testified that he had not seen exhibit Nos. 30 and 31 when forming his opinion, nor would he normally look for polar maps because they could be confusing and not very specific. He was unable to interpret exhibit Nos. 30 and 31 because he did not know how they had been generated.

Ruder himself testified that he never saw exhibit Nos. 30 and 31. The software used to analyze the images, which costs between $100,000 and $150,000, can generate innumerable images. Ruder examined the standard images used for diagnostic purposes.

Finally, Dr. Gregory S. Thomas, another defense expert, explained how the software was used with the scan functions. The cameras used in the process detect the radiation that is injected into the patient. The software then organizes the data collected by the cameras into pictures that have meaning to a cardiologist trained in interpreting the pictures. Once the pictures are organized, the cardiologist can adjust the data, similar to changing the contrast on a television. The data may be transferred from one physician to another either by transferring the raw data or by transferring the pictures the physician has already adjusted.

Thomas opined that Nunes's scan was normal, as were the polar maps. Thomas concluded Ruder was not negligent.

Thomas had not seen exhibit No. 30 before trial, but he agreed it represented an abnormal scan. It did not appear to Thomas as if it were from the same scan as the data provided by Ruder. The images reflected a lack of blood flow during stress. He also speculated that the reason the images were different was because the patient may have moved during the scan, which takes approximately 20 minutes. Thomas also agreed that exhibit No. 31 was an abnormal study if the patient did not move.

In response to Ruder's objections to the introduction of exhibit Nos. 30 and 31, the trial court instructed the jury as follows:

"Ladies and gentlemen of the jury, Dr. Botvinick testified on July 22nd, 2009, that after his deposition and after his testimony in court on July 15, 2009, he, for the first time, opened Exhibit 33, the CD of the 9-6-05 dual isotopes myocardial perfusion scan and saw for the first time some images of this study that he had not seen before.
"Based on what he saw on Monday, July 20th, 2009, on July 22nd, 2009, Dr. Botvinick changed his previous opinion that the polar maps were normal to the opinion that they were abnormal. He gave other opinions relative to his review on Monday, July 20th, 2009, of the content of Exhibit Number 33.
"The weight to which the newly provided opinions should be given is for your determination considering the entirety of the circumstances
under which the July 22nd, 2009, opinions, based upon Exhibit 33, were rendered."

In closing argument, plaintiffs' counsel argued that Ruder was negligent because after he reviewed the scan and examined Nunes, he concluded that no further treatment was necessary. Plaintiffs' counsel argued that the September 6, 2005, scan and ECG suggested abnormality and, as a result, Ruder should have performed an angiogram.

Ruder's counsel's primary argument was that Ruder was not negligent. He emphasized that Nunes had two stress tests done within six months and Nunes did not experience chest pain during either test. He noted that some of plaintiffs' expert witnesses agreed that the ECG performed during the scan stress test was normal. While Ruder's counsel agreed that Botvinick was a qualified expert, he emphasized that Ruder's experts, Mahmarian and Thomas, also were qualified and disagreed with Botvinick.

The last issue discussed by Ruder's counsel was the new evidence discovered by Botvinick. He emphasized that Botvinick wanted the raw data from the scan and that was what was provided. Botvinick also concluded that the polar maps included in the scan were normal. Ruder's counsel then reviewed the events leading up to the discovery of the new evidence, including Botvinick's first day of testimony. He emphasized to the jury that Botvinick was "the only witness who has an instruction regarding his testimony."

The trial court overruled plaintiffs' counsel's objection to the comment, stating "Well, no, there is one instruction that applied to Dr. Botvinick." After plaintiffs' counsel argued that the instructions applied to all of the witnesses, the trial court clarified that "There is one instruction in this case that applies to Dr. Botvinick; all of the other instructions apply to all of the witnesses."

Ruder's counsel then read the instruction to the jury. He pointed out that Botvinick had had the raw data for over two years and never told Ruder's counsel or the jury until the second day of his testimony that he had any difficulty accessing the data on the compact disc. He then emphasized that before the second day of his testimony, Botvinick repeatedly had testified that the polar scans were normal and that he could see how the scan itself was read as normal. He then suggested to the jury that it could disregard Botvinick's testimony if it did not believe any part of the testimony.

During his rebuttal argument, plaintiffs' counsel emphasized the instruction that permits the jury to distrust weaker evidence when a party could have provided stronger evidence. (CACI No. 203.) He told the jury that Ruder had the data, the necessary proprietary software, and a laptop computer that could have been used to show the jury the raw data that was on the compact discs that were admitted into evidence. He argued that the reason Ruder's counsel did not do so was because it would have confirmed the data that Botvinick discovered during trial. He reviewed the testimony of Ruder's experts and their failure either to address the images found by Botvinick or to demonstrate for the jury why the images found by Botvinick were not reliable.


I. The Special Instruction

Plaintiffs' primary argument is that the special instruction, quoted above, should not have been given to the jury. They follow up by asserting the trial court compounded the error by failing to instruct the jury that when Ruder produced the compact disc containing the raw data from Nunes's scan, he was obligated, pursuant to the Civil Discovery Act (§ 2016.010 et seq.), to provide the information in a reasonably usable form. (Code Civ. Proc., § 2031.280, subd. (e).)

We address only plaintiffs' initial argument. As we shall explain, we agree with plaintiffs that the special instruction was erroneous and should not have been given. Unlike plaintiffs, however, we conclude reversal is not required because the error did not result in a miscarriage of justice. (Cal. Const., art. VI, § 13; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).) Since we conclude the error was not prejudicial, we need not decide if the refusal to give plaintiffs' proposed instruction was erroneous. This is so because plaintiffs' proposed instruction was intended to lessen the prejudicial impact of the special instruction that was given. Since the special instruction did not result in a miscarriage of justice, the failure to give a mitigating instruction cannot result in a miscarriage of justice.

General principles

"'A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.' [Citation.] However, instructional error in a civil case is not grounds for reversal unless it is probable the error prejudicially affected the verdict. [Citation.] In determining whether instructional error was prejudicial, a reviewing court must evaluate '(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.' [Citation.]
"'Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. [Citations.]' [Citation.] Finally, '[e]rror cannot be predicated on the trial court's refusal to give a requested instruction if the subject matter is substantially covered by the instructions given. [Citations.]' [Citations.]" (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217.)

The special instruction was erroneous

As stated in the above quote, jury instructions should state general rules of law in nonargumentative terms and should not overemphasize issues. The special instruction informed the jury that (1) Botvinick opened the compact disc for the first time after the first day of his testimony; (2) he then changed his opinion that the polar scans were normal; and (3) the weight to be assigned to his testimony was for the jury to decide. This instruction should not have been given for three reasons.

First, the instruction was inaccurate. Botvinick never changed his opinion that the polar scans that were included on exhibit No. 16 were normal. Exhibit No. 16 is the same as one of the documents produced by Ruder in response to plaintiffs' request for production of documents. Indeed, every witness to opine on the issue concluded that the polar scans in exhibit No. 16 were normal.

When Botvinick opened the compact disc, he viewed for the first time polar scans that were different than those contained in exhibit No. 16. This new evidence was what Botvinick opined was abnormal. Ruder's expert, Thomas, agreed that the new polar scans were abnormal (although he testified that they were not representative of Nunes's condition because Nunes must have moved during the test). Therefore, Botvinick did not change his opinion; he merely opined on newly discovered evidence.

Because Thomas also concluded that exhibit Nos. 30 and 31 represented abnormal polar scans, the trial court's reasoning should have resulted in Thomas also being named in the special instruction.

Second, the instruction was repetitive. The only legal principle contained in the instruction was that the jury was to decide what weight to give to Botvinick's testimony.The jury also was instructed at the commencement of trial that it was charged with deciding whether it believed each witness and how important each witness's testimony was to the case. (CACI No. 107.) This instruction also informed the jury that if it decided a witness testified untruthfully, it may choose not to believe the witness's entire testimony. This instruction also informed the jury that while it makes no difference if evidence is direct or indirect, the jury must decided whether to believe or disbelieve either kind, and it should give "every piece of evidence whatever weight you think it deserves." (CACI No. 202.)

Whether Botvinick opened the compact disc for the first time after his first day of testimony and whether he changed his opinion are issues of fact and within the province of the jury to decide. (§ 592; see also CACI No. 5000.)

The trial court again instructed the jury before closing arguments. The jury was once again informed that it was charged with deciding whether it believed each witness, how important each witness was to the case, and it may choose not to believe a witness's entire testimony if it determined the witness testified untruthfully in some respects. (CACI No. 107.) The jury also was instructed with the principles applicable to expert testimony, including that it was not required to accept an expert's opinion, it must decide whether it believed each expert, and it may believe all or part of an expert's testimony. (CACI No. 219.)

These instructions made it clear to the jury that it must decide what weight would be given to the testimony of any witness, including Botvinick. To repeat this obligation in a special instruction directed only at Botvinick was unnecessary, repetitive, and ill-advised.

Finally, the special instruction should not have been given because it focused on only Botvinick's testimony. (County of San Mateo v. Christen (1937) 22 Cal.App.2d 375, 382.) As explained over 100 years ago, instructions should be given in general terms because an instruction that singles out the testimony of a single witness conveys to the jury that the judge disbelieves the testimony of that witness. (Thomas v. Gates (1899) 126 Cal. 1, 4-5.)

Therefore, for each of these reasons, the trial court erred in instructing the jury with the special instruction.

Prejudice analysis

An error in instructing the jury will result in reversal only if, after an examination of the entire case, it appears the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Soule, supra, 8 Cal.4th at p. 574.) A miscarriage of justice occurs when "there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.]" (Soule, at p. 574.) Or, in other words, "Instructional error in a civil case is prejudicial '"where it seems probable" that the error "prejudicially affected the verdict."' [Citation.]" (Green v. State of California (2007) 42 Cal.4th 254, 266.) "Probable" in this context "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.)

The Supreme Court has identified four factors that guide our analysis: (1) the state of the evidence, (2) the effect of other instructions in remedying the error, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled. (Soule, supra, 8 Cal.4th at pp. 580-581; LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876.)

We begin with the state of the evidence. The circumstances of Nunes's death suggested that Ruder was negligent. Nunes suffered from hypertension, hyperlipidemia, and had a family history of heart disease. Each of these factors put Nunes at risk for developing heart disease. Six weeks before he died, Nunes experienced chest pains and was examined by Ruder. Ruder concluded there was no evidence of heart disease and determined no further treatment was necessary unless new symptoms developed.

The issue of negligence turned on the testimony of the expert witnesses. All of the experts agreed that performing the scan as a first step was within the standard of care. Ruder's experts reviewed the images from the scan and determined that it was a normal scan, i.e., there was no evidence of heart disease. In addition, as a normal part of Ruder's practice, the scan was reviewed by Sakata, who also concluded the scan was normal. These physicians also found it significant that Nunes was able to complete the stress test without difficulty. The doctors explained that normally someone with heart disease could not do so without experiencing pain.

Plaintiffs did not rely only on the circumstances leading up to Nunes's death to establish Ruder's negligence. They presented the testimony of Botvinick and another well-qualified expert to opine that Ruder's care fell below the standard of care. Plaintiffs insist that Botvinick was their key expert, a conclusion with which we agree. He testified the scan was abnormal, and the newly discovered polar images supported his testimony.

We agree with plaintiffs that this evidence presented a close case on the issue of liability. Because the erroneous instruction may have caused the jury to view Botvinick's testimony with suspicion, this factor would favor a finding of prejudice.

The second factor in our analysis is the effect of other instructions on remedying the error. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1070 (Pool).) This factor is inapplicable in this case because the error in the instruction was that it focused on the testimony of a single witness. While all of the other instructions applied to every witness, as the trial court informed the jury, this instruction applied only to the testimony of Botvinick. Nothing in any of the other instructions could have ameliorated this error.

The third factor is the effect of counsel's argument on the instruction. In closing argument, Ruder's counsel invited the jury to disregard all of Botvinick's testimony based on this instruction. In essence, he argued that Botvinick made up the new evidence and, because he lied about the new evidence, all of his testimony should be disbelieved.

Plaintiffs' counsel countered that Ruder, when presented with the newly discovered evidence, could have presented evidence explaining to the jury that the information was unreliable simply by opening the compact disc from which Botvinick claimed he had obtained the new evidence and demonstrating to the jury that the new evidence was not on the compact disc or had been manipulated in some manner or was unreliable for some reason. After all, plaintiffs' counsel argued, Ruder had the original data because he ran the test. Because Ruder's counsel did not do this, plaintiffs' counsel argued that the failure to produce such evidence confirmed the accuracy of the new evidence discovered by Botvinick.

While Ruder's counsel's argument quoted the erroneous instruction, that instruction did not permit the jury to disregard Botvinick's testimony if it concluded that portion of Botvinick's testimony should not be believed. The erroneous instruction merely informed the jury that it was to determine what weight was to be given to this testimony. Instead, Ruder's counsel was relying on CACI No. 5003, to which no objection was raised. Moreover, plaintiffs' counsel effectively was able to counter Ruder's counsel's argument by pointing out that Ruder failed to present evidence that, if it existed, would have cast doubt on the newly discovered polar diagrams. Therefore, this factor does not suggest any prejudice from the erroneous instruction.

As to the fourth factor, there is no evidence that the jury was misled by the erroneous instruction. The jury did not ask for an explanation of the instruction, nor did it ask for it to be reread. While it is true the jury asked for a copy of the instructions, we cannot assign any significance to this since no specific reason was given for the request.

Other cases from the Supreme Court suggest we also should consider the closeness of the jury's verdict in our analysis. (Pool, supra, 42 Cal.3d at p. 1070.) We note that the verdict was in favor of Ruder by a vote of nine to three.


While we recognize the instruction should not have been given, the instruction itself did not instruct the jury that it should disregard Botvinick's testimony or that it should not believe this portion of his testimony. It simply told the jury that the weight of the testimony was for the jury to decide. The instruction was erroneous because it placed undue emphasis on this portion of Botvinick's testimony.

The trial court was presented with a challenging situation. When the evidence first was presented, charges of sandbagging and obstruction were leveled by each side against the other. The trial court considered all options available to avoid a mistrial, but neither side apparently wanted a continuance or a recess to consider the best method to present the information to the jury. The resulting jury instruction was a compromise the trial court arrived at after rejecting a harsher instruction requested by Ruder's counsel.

The jury had before it all the information on the newly discovered evidence. It heard extensive, and sometimes objectionable, arguments from counsel on both sides. The issue was squarely before the jury and it had all it needed to evaluate the newly discovered evidence. Under these circumstances, we conclude that it is not reasonably probable plaintiffs would have obtained a better result had the instruction not been given.

II. Costs Pursuant to Section 998

After the verdict, Ruder filed a memorandum of costs seeking to recover witness fess in excess of $100,000. Included in this amount was over $97,000 in expert witness fess.

Plaintiffs filed a motion to tax costs, arguing, in part, that Ruder was not entitled to recover expert witness fees pursuant to section 998 because the offer he made was not reasonable. Included with the motion was a copy of Ruder's section 998 offer dated May 6, 2008. In this document Ruder offered to waive any claim for costs and the right to prosecute any malicious prosecution action in exchange for a dismissal with prejudice of the entire action. The trial court ultimately determined the offer was made in good faith and therefore Ruder was entitled to recover reasonable expert witness fees. Plaintiffs appealed from the order denying their motion to tax costs.

Applicable authority

The right to recover costs is derived solely from statutes; in the absence of statutory authority, each party must pay his or her own costs. (Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439.) The general rule allowing recovery of costs is found in section 1032. (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1439 (Guerrero); Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108 (Scott Co.) ["Section 1032 is the fundamental authority for awarding costs in civil actions"].) Section 1032 requires the trial court to award costs to the prevailing party in any action or proceeding, "[e]xcept as otherwise expressly provided by statute." (Id., subd. (b).) Section 1033.5 identifies the costs that are recoverable under section 1032. Under section 1033.5, subdivision (b)(1), fees paid to experts retained by the parties are not recoverable costs.

"Section 998 modifies the general rule of section 1032." (Scott Co., supra, 20 Cal.4th at p. 1112.) Section 998, subdivision (a) states, "The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section." In other words, "'section 998 establishes a procedure for shifting the costs upon a party's refusal to settle'" (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 128 (Westamerica Bank)) by "expand[ing] the number and type of recoverable costs and fees over and above those permitted by section 1032[, subdivision] (b)." (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 1000.)

As occurred in this case, when the defendant makes an offer to the plaintiff that the plaintiff refuses, and the plaintiff fails to obtain a more favorable judgment, the plaintiff is precluded from recovering his or her costs incurred after the offer was made, and the defendant is entitled to recover his or her costs incurred after the offer was made. (§ 998, subd. (c)(1).) In addition, the trial court has discretion to order the plaintiff to pay the costs the defendant incurred for the services of expert witnesses. (Ibid.)

"[T]he Legislature adopted [section 998] to encourage early settlement of lawsuits to avoid the time delay and economic waste of trial, and to reduce the number of meritless lawsuits by requiring the losing party to pay the costs incurred by the prevailing party." (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 711; see also T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280 ["the clear purpose of section 998 ... is to encourage the settlement of lawsuits prior to trial"].) "Section 998 achieves its aim by punishing a party who fails to accept a reasonable offer from the other party. [Citations.]" (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699; see also Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 583.)

Thus, the defendant must submit a reasonable offer that the plaintiff realistically could be expected to accept because an offer the plaintiff will not accept (i.e., an unreasonable offer) will not encourage settlement, thereby defeating the purpose of the statute. (Guerrero, supra, 163 Cal.App.4th at p. 1440.) "The courts have uniformly rejected an interpretation of section 998 that would allow offering parties to '"game the system."' [Citation.] A section 998 offer must be made in good faith and be '"realistically reasonable under the circumstances of the particular case,"' and carry with it some reasonable prospect of acceptance. [Citations.] The reasonableness of the offer depends upon the information available to the parties as of the date the offer was served. [Citations.]" (Westamerica Bank, supra, 158 Cal.App.4th at pp. 129-130.)

We review the trial court's determination that a section 998 offer was reasonable for an abuse of discretion. (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877; Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th 324, 329.) An abuse of discretion occurs when a trial court acts in an arbitrary, capricious, or patently absurd manner that results in a miscarriage of justice. (Najera, at p. 877.)


Plaintiffs claim that defendants' offer was not reasonable and the trial court abused its discretion when concluding otherwise. Ruder argues that while he did not offer to pay plaintiffs anything for their loss, he did offer to waive his costs, which, by the time of trial, could be significant. The circumstances that existed at the time the offer was made, however, establish the weakness of this argument.

At the time the offer was made, over one year before trial, none of Ruder's experts had been disclosed to plaintiffs (§ 2034.220) and no expert depositions had been taken. Therefore, there was no way for plaintiffs to know if Ruder had yet retained any expert witnesses or how many experts Ruder had retained. Accordingly, as far as plaintiffs knew, the only costs incurred by Ruder at the time the offer was made was the filing fee for answering the complaint and any fee associated with motions that may have been filed. From plaintiffs' standpoint, the total costs incurred by Ruder at the time the offer was made could have been less than $1,000.

The offer was served on May 9, 2008. Trial commenced on July 7, 2009.

Ruder contends that plaintiffs should have looked into the future and anticipated what type of experts Ruder would retain, how many experts he would retain, and the amount these experts would charge. Once plaintiffs anticipated this information, they could then compare their potential cost exposure against their chance of success on the merits to decide if proceeding to trial was the correct choice. Ruder's argument places plaintiffs in the unacceptable position of making assumptions about defense tactics and ignores the requirement that we must limit our evaluation to the facts known at the time the offer was made. For these reasons alone, Ruder's offer was unreasonable.

Our conclusion, however, is reinforced when the state of the evidence is factored into our analysis. At the time the offer was made, plaintiffs knew that two well-qualified cardiologists had found Ruder's treatment was negligent. Plaintiffs did not know whether any expert that may have been retained by Ruder concluded that his actions were negligent or not. For all plaintiffs knew, Ruder may not have been able to locate any cardiologist that concluded his actions met the standard of care, and his trial position may have been limited to trying to minimize plaintiffs' damages. In addition, the circumstances surrounding Nunes's death also strongly suggested Ruder was negligent. Six weeks before Nunes died due to severe heart disease, Ruder had examined Nunes and told him he did not have heart disease. These circumstances confirm that Ruder's offer was not reasonable and there was no reasonable prospect of acceptance.

Finally, Ruder's potential exposure also supports our conclusion. Plaintiffs argued to the jury that their loss as the result of Nunes's death exceeded $1,600,000. Although difficult to tell from the testimony, it appears Ruder's expert placed plaintiffs' damages at a minimum of around $300,000. When one combines the significant damages, the state of the evidence, and the minimum costs incurred by Ruder at the time the section 998 offer was made, it is clear that Ruder was attempting to "game the system" by making an unreasonable offer that had no chance of being accepted. Indeed, the trial court seemed to recognize the defense's tactics when it noted that in "almost every malpractice case over which I have presided, the [section] 998 Offer has been for a waiver of costs."

We have reviewed each of the cases cited by the parties and find Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53 (Pineda) and Wear v. Calderon (1981) 121 Cal.App.3d 818 (Wear) to be instructive.

In Pineda, a horse jockey died after an accident in the starting gate before a race. His decedents sued for wrongful death. The plaintiffs sought damages of $10 million. One month before trial, the defendant made a section 998 offer to settle the matter for $2,500. The defendant prevailed at trial and moved to recover expenses as permitted by section 998. The trial court found the offer was not made in good faith and denied enhanced costs. The appellate court agreed. "Although [defendant's] liability was tenuous indeed, having in mind the enormous exposure the trial court could find that [defendant] had no expectation that its offer would be accepted. From this it follows that the sole purpose of the offer was to make [defendant] eligible for the recovery of large expert witness fees at no real risk." (Pineda, supra, 112 Cal.App.3d at p. 64.)

In Wear, the plaintiff was a passenger in an automobile that was involved in a traffic accident. The plaintiff filed suit against the owners and operators of both vehicles. The defendant, the driver of the vehicle in which the plaintiff was not riding, offered to settle the case for one dollar pursuant to section 998. The plaintiff recovered damages against the driver of the vehicle in which he was riding, but the jury found the defendant was not negligent. The trial court awarded the defendant enhanced costs pursuant to the terms of section 998.

The appellate court concluded that an offer made pursuant to section 998 must be made in good faith, i.e., "must be realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy this good faith requirement." (Wear, supra, 121 Cal.App.3d at p. 821.) The court then concluded that the defendant's offer was only a token offer and thus was not made in good faith. (Ibid.) The court noted that the plaintiff obtained a verdict in his favor for damages in the amount of $18,500. "A plaintiff may not reasonably be expected to accept a token or nominal offer from any defendant exposed to this magnitude of liability unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable.... But if there is some reasonable possibility, however slight, that a particular defendant will be held liable, there is practically no chance that a plaintiff will accept a token or nominal offer of settlement from that defendant ...." (Ibid.)

Ruder made only a token offer. Ruder faced damages in excess of $1 million and liability was contested. Under these circumstances, as in Pineda and Wear, there was no possibility that plaintiffs would accept the offer to dismiss the suit for a waiver of costs. Accordingly, the offer was not made in good faith and the trial court abused its discretion in concluding otherwise.

Ruder claims Jones v. Dumrichob (1998) 63 Cal.App.4th 1258 (Jones) supports his position, but this case is distinguishable. The plaintiffs sued the defendant for medical malpractice and sexual battery, alleging, apparently, inappropriate touching while plaintiff wife was anesthetized. The defendant issued a section 998 offer "to allow judgment to be taken against him for a waiver of costs." (Jones, at p. 1261.) The jury found in favor of the defendant, and he sought his expert witness fess pursuant to section 998. The trial court awarded the defendant the fees sought. Plaintiffs argued that the trial court erred because the defendant's section 998 offer was not reasonable. The appellate court distinguished Wear and Pineda because the defendant had offered to waive his right to recover his costs, which carried with it "significant monetary value." (Jones, at p. 1263.) The court also concluded that the absence of an offer to pay plaintiffs any money to settle the case did not automatically establish the offer was made in bad faith. (Id. at p. 1264.) Finally, the court concluded it was impossible to find that the trial court abused its discretion because plaintiffs had failed to provide a record adequate to determine if there was any possibility plaintiffs could have prevailed at trial. (Ibid.)

Nelson v. Anderson (1999) 72 Cal.App.4th 111, another case cited by Ruder, reached the same result for the same reason -- an inadequate record on appeal.

We agree with Jones that under some circumstances an offer to waive costs in exchange for a dismissal of the action may indeed by a good faith offer, e.g., where "it is absolutely clear that no reasonable possibility exists that the defendant will be held liable." (Wear, supra, 121 Cal.App.3d at p. 821.) We also agree with Jones that the absence of an adequate record precludes a finding that the trial court abused its discretion. But this is not that case. Here, plaintiffs provided a complete record. The record establishes that liability was a close call and, if Ruder had been found liable, damages would have been in excess of $1 million. Therefore, Jones does not aid Ruder.


The judgment is affirmed. The order taxing costs is vacated. The matter is remanded to the trial court for reconsideration of the motion to tax costs. When reconsidering the motion, the trial court is directed to find Ruder's section 998 offer was not made in good faith and therefore Ruder is not entitled to recover augmented costs. Each party is to bear their own costs on appeal.


WE CONCUR: ________________
LEVY, Acting P.J.

Summaries of

Nunes v. Ruder

Dec 29, 2011
F059191, F059723 (Cal. Ct. App. Dec. 29, 2011)
Case details for

Nunes v. Ruder

Case Details

Full title:JANET NUNES et al., Plaintiffs and Appellants, v. MICHAEL A. RUDER et al.…


Date published: Dec 29, 2011


F059191, F059723 (Cal. Ct. App. Dec. 29, 2011)