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O'Rourke v. Ali

California Court of Appeals, Second District, Third Division
Oct 31, 2022
No. B305139 (Cal. Ct. App. Oct. 31, 2022)


B305139 B310392


WALTER O'ROURKE et al., Plaintiffs and Appellants, v. NAYYER Z. ALI et al., Defendants and Respondents.

Dykema Gossett, Becky S. James and Lisa M. Burnett for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza and Alysia B. Carroll; Kjar, McKenna &Stockalper, Robert L. McKenna and Michael R. Pittman for Defendants and Respondents Nayyer Z. Ali, M.D., and Nayyer Z. Ali, M.D., Inc. West &Rosa, Stephen A. Rosa and Andrew W. Salmond for Defendants and Respondents Charles B. O'Brien, M.D., CBO, a Medical Corporation, and Emergency Physicians Medical Associates of Long Beach.


APPEAL from a judgment of the Superior Court of Los Angeles County No. BC514989, Mark C. Kim, Judge. Affirmed.

Dykema Gossett, Becky S. James and Lisa M. Burnett for Plaintiffs and Appellants.

Cole Pedroza, Kenneth R. Pedroza and Alysia B. Carroll; Kjar, McKenna &Stockalper, Robert L. McKenna and Michael R. Pittman for Defendants and Respondents Nayyer Z. Ali, M.D., and Nayyer Z. Ali, M.D., Inc.

West &Rosa, Stephen A. Rosa and Andrew W. Salmond for Defendants and Respondents Charles B. O'Brien, M.D., CBO, a Medical Corporation, and Emergency Physicians Medical Associates of Long Beach.


Plaintiff and appellant Walter O'Rourke went to an emergency room complaining of arm pain. Hours later, he had a heart attack. He and his wife, Wendy O'Rourke, sued two of the doctors who treated him and their medical corporations: defendants and respondents Dr. Nayyer Z. Ali; Nayyer Z. Ali, M.D., Inc.; Dr. Charles O'Brien; CBO, a Medical Corporation; and Emergency Physicians Medical Associates of Long Beach. A jury found that the doctors were not negligent in caring for Walter. The trial court entered judgment in their favor and awarded them costs, including expert witness fees based on offers to compromise defendants had served under Code of Civil Procedure section 998. Plaintiffs now appeal, contending that juror and attorney misconduct and the improper admission of an expert witness's testimony require reversal of the judgment. They also appeal the award of expert witness fees. We reject plaintiffs' contentions and affirm the judgment.

To avoid confusion, we sometimes refer to plaintiffs by their first names, intending no disrespect.

All further undesignated statutory references are to the Code of Civil Procedure.


I. Walter's heart attack and hospitalization

On January 13, 2012, at about 3:30 a.m., 53-year old Walter woke with excruciating pain in his arm. Thinking he was having a heart attack, his wife, Wendy, and his son drove him to Community Hospital of Long Beach.

Soon after Walter arrived at the hospital, emergency room physician Charles O'Brien saw him at 4:30 a.m. Walter had reported a pain level of 10 out of 10 on a pain scale to a nurse but a five out of 10 to Dr. O'Brien. He also reported left arm and epigastric pain but denied chest and jaw pain and shortness of breath. Walter denied being a smoker or having a family history of coronary artery disease, hypertension, high cholesterol, or diabetes. Dr. O'Brien ordered a test to detect troponin, an enzyme released into blood when the heart is irritated. Walter's troponin level was normal, although the doctor knew it might take hours for it to become elevated after a cardiac event.

At 4:45 a.m., the doctor ordered an electrocardiogram (EKG), which the computer interpreted as showing an "inferior infarct age undetermined." Dr. O'Brien, however, interpreted the EKG as showing "nonspecific ST changes" only, although he agreed the results were abnormal. A second EKG ordered 10 minutes later had the same result. Walter was given an antacid, aspirin, and three doses of nitroglycerin, none of which helped his pain, so the doctor ordered morphine, which also had no impact on the pain. At 6:00 a.m., Walter was given Dilaudid, a narcotic, which reduced Walter's pain to a three. Based in part on a CT scan, Dr. O'Brien had ruled out by 7:00 a.m. aortic dissection (a tear in the main artery), pulmonary embolism, liver issues, and pancreatitis. On a risk assessment tool called TIMI, Walter scored a zero, meaning he was at minimal risk of a cardiac event.

At about 7:15 a.m., Dr. O'Brien told Dr. Ali, a critical care physician and hospitalist who was taking over Walter's care, that his differential diagnosis was either cardiac ischemia or gastritis, and he recommended a cardiac workup. They agreed to admit Walter to the hospital's telemetry unit for monitoring and possible acute coronary syndrome.

A nurse assessed Walter on his admission to the telemetry unit. At 9:40 a.m., she paged Dr. Ali to get his admission orders and, when he didn't respond, paged him again at 10:30 a.m. At 10:30 a.m., Dr. Ali ordered aspirin and nitroglycerin, but he did not order lab tests, special imaging studies, and cardio diagnostics or other consultations. At 1:00 p.m., a nurse told Dr. Ali that Walter had arm and upper chest pain. But when the doctor saw Walter at 1:35 p.m., Walter said he was only having arm pain, and he added that he had a negative stress test two years ago. Dr. Ali ordered Dilaudid for pain, troponin stat (urgent), and a cardiology consult. An EKG done at 1:21 p.m. showed what Dr. Ali thought was a possible inferior infarct, age undetermined, which is what the earlier EKGs had shown. Dr. Ali did not see Walter again that day.

Instead, at 3:10 p.m., a nurse directly informed cardiologist Dr. Emmanuel Vasilomanolakis that Walter's troponin was critically elevated. Dr. Vasilomanolakis assessed that Walter was having a non-STEMI heart attack, which is generally considered low risk. But, by about 4:00 p.m., Walter had a massive infarct, a STEMI heart attack. Dr. Vasilomanolakis ordered intravenous nitroglycerin and heparin.

Cardiologists classify heart attacks as non-STEMI and STEMI, referring to whether the ST-value on an EKG is elevated.

On Dr. Vasilomanolakis's order, Walter had been transferred to the intensive care unit, where the doctor saw him at 4:30 p.m. Walter told Dr. Vasilomanolakis that he had been having left arm pain for six months but thought it was from lifting his grandchildren. Dr. Vasilomanolakis intended to perform an angiogram, but Walter went into cardiac arrest and was revived.

The doctor proceeded with the angiogram at 6:00 p.m., and as expected, Walter's left anterior descending artery was blocked. Unexpectedly, the blockage was not a fresh clot but instead was rock hard, suggesting the artery had been closed off or occluded for anywhere from 30 days to years. Walter's first diagonal artery had been acting as a collateral source for blood flow to the blocked artery. Because fresh blood clots were breaking off and traveling down the first diagonal artery, it had to be bypassed.

After the procedure, Walter was transferred to a hospital closer to his home, and he remained in a coma for a week. Ultimately, he had a heart transplant in April 2015. Since his heart attack in 2012, Walter has suffered multiple hospitalizations and cannot resume his prior lifestyle, which included working full-time, traveling, playing sports, and actively engaging with his large family.

II. Plaintiffs' lawsuit and trial

The O'Rourkes initiated their lawsuit in 2013, alleging, as relevant here, causes of action for professional negligence and loss of consortium against Dr. Ali and his professional corporation (the Ali defendants) and Dr. O'Brien and his professional corporations (the O'Brien defendants).

Plaintiffs settled with and dismissed other defendants who are not parties to this appeal.

Before trial, the Ali defendants and the O'Brien defendants made offers to compromise under section 998, each agreeing to waive costs in exchange for dismissals. Plaintiffs did not accept the offers.

We sometimes refer to such offers as 998 offers.

The matter proceeded to trial in October 2019. Plaintiffs filed numerous motions in limine, including ones to exclude evidence of: comparative fault, plaintiffs' immigration status,and Dr. Vasilomanolakis's undisclosed expert opinions.

Plaintiffs are Canadian citizens who spent significant time in California due to work and family commitments.

At trial, the parties' competing expert witnesses testified about the standard of care for emergency room physicians (Dr. O'Brien) and hospitalists (Dr. Ali), with plaintiffs' experts saying the physicians fell below that standard, and defendants' experts saying they met it. In short, defense expert Dr. Raymond Ricci, an emergency room physician, testified that Dr. O'Brien complied with the standard of care by ordering the appropriate tests. Dr. Ricci agreed with Dr. O'Brien's assessment that Walter's EKG did not show evidence of ischemia. Intravenous nitroglycerin, intravenous heparin, and a cardiology consult were not indicated because none of the tests showed that Walter was about to have a heart attack. Based on Walter's test results and the medical history he related, Dr. Ricci also considered him at low risk of a cardiac event.

Plaintiffs' expert, Dr. Michael Ritter, opined to the contrary that Dr. O'Brien fell below the standard of care applicable to emergency room physicians and this was a substantial factor in causing injury to Walter. Once Walter's pain lasted longer than 20 minutes, Dr. O'Brien should have given him nitroglycerin intravenously. Once the CT came back, he should have started Walter on intravenous heparin and called a cardiologist.

As to whether Dr. Ali met the standard of care, defense expert Dr. Michael Eilbert, an internal medicine hospitalist, said that the 2012 guidelines suggested that if troponin was drawn within the first six hours of the onset of symptoms, a second draw should be done eight to 12 hours after initial presentation. According to Dr. Eilbert, Dr. Ali complied with the standard of care when repeating the troponin test and at all times when caring for Walter. Defense expert Dr. Morton Kern concurred that the standard of care required a second troponin draw eight to 12 hours after the first and that Walter was at low risk for a cardiac event. He also testified that the standard of care did not require Walter's immediate transfer to the catheterization lab.

Plaintiffs' expert Jay Schapira testified that had Walter been in the catheterization lab by 4:45 or 5:00 p.m., he could have been successfully stented. Dr. Benny Gavi opined that Dr. Ali should have seen Walter within an hour of taking over his care or should have called for a cardiology consult.

After two days of deliberating, the jury found that Drs. Ali and O'Brien were not negligent in diagnosing or treating Walter. The jury's vote was nine to three as to Dr. Ali and unanimous as to Dr. O'Brien.

Plaintiffs moved for a new trial based on alleged juror and attorney misconduct, for judgment notwithstanding the verdict on the ground that there was insufficient evidence as a matter of law to support the verdict, and to tax costs, in particular expert witness fees. The trial court denied all three motions.

This appeal followed.


I. Juror misconduct

Plaintiffs moved for a new trial based on the alleged misconduct of Jurors Nos. 2, 4, and 12 and the misconduct of jurors generally in considering collateral sources and Walter's comparative fault. After providing additional background about the motion and the law regarding juror misconduct, we conclude that the trial court did not err in denying the motion.

A. The motion for new trial and juror affidavits

1. Plaintiffs' moving papers

Plaintiffs' motion for new trial included declarations from two jurors, both of whom had voted in favor of finding Dr. Ali negligent. Juror No. 7 Daniel Gonzalez declared that shortly after beginning deliberations, Juror No. 4 Evelyn Cole had said she was voting for the doctors no matter what anyone said and that she would not change her mind. Other jurors then discussed their personal medical-related experiences, that Walter's actions contributed to the events, and that Walter could get free medical care because he was Canadian. According to Gonzalez, Juror No. 2 Yolanda Lagason said that based on her experience as a certified nursing assistant, she did not believe there was negligence because healthcare providers operated as a team.

Juror No. 11 Keith Oliver also submitted a declaration in which he agreed that Cole had said her mind was made up at the outset, that there was no way a doctor did anything wrong, and doctors did not make mistakes. Oliver also agreed that other jurors remarked on personal experiences; for example, Juror No. 1 Barbara Willimann said she too had waited hours in an emergency room, and this was normal. Juror No. 2 Lagason said she resented that the nurse had to give a deposition and felt that the doctor could not have made a mistake. Juror No. 3 Melissa Wyss had said Walter didn't need money because he could afford his care, and she didn't want to find Dr. Ali guilty because it could hurt his career.

Oliver also said that jurors discussed whether Walter was responsible for his heart attack. And when Oliver presented the minority view of why the doctors were negligent, there "were lots of tears, but no other juror" disputed his points. Instead, Juror No. 12 David Urciuoli said he would not vote for plaintiffs because their lawyer was a bully, even though the juror agreed that Dr. Ali could have done more. Finally, Oliver said that although Juror No. 6 had initially said that another doctor would have done more than Dr. Ali had done, when she returned to deliberations the second day, she tearfully said she had changed her mind because she felt "we were hopelessly locked," and she didn't want to ruin Dr. Ali's career.

2. Defendants' opposing papers

In opposition to plaintiffs' motion, the Ali defendants argued that portions of the jurors' declarations were inadmissible under Evidence Code section 1150. The Ali defendants also submitted the declarations of Juror No. 1 Willimann; Juror No. 3 Wyss; Juror No. 12 Urciuoli; and Juror No. 8 Michael Vittorio.

Willimann denied saying she had spent hours in an emergency room without seeing a doctor, although she had mentioned having brief visits with doctors. She had expressed her beliefs that Dr. Ali didn't have to see Walter sooner than he did because Walter was being monitored and that the doctor had spent enough time with Walter during the afternoon visit. Willimann did not recall a discussion about Walter's possible Canadian citizenship but did recall discussions after a verdict had been reached about whether Walter was Canadian.

Wyss denied saying that Walter could afford his care and that she didn't want to find Dr. Ali negligent because it would harm his career. She didn't discuss her personal experiences in emergency rooms. Instead, any personal comment she made was in passing.

Urciuoli admitted that he flippantly called plaintiffs' counsel a bully but denied saying he would vote against plaintiffs because of it.

Vittorio also said he did not raise any personal experience not already disclosed during voir dire, including his own cardiac event.

All four jurors said they did not recall the statements Gonzalez and Oliver attributed to other jurors, including Juror No. 2 Lagason, the certified nursing assistant. Although the jurors did discuss that Walter had not had a physical in the 10 years preceding his heart attack, nobody suggested voting in Dr. Ali's favor because Walter was to blame for his heart attack. The four jurors further agreed that nobody had said they would vote for the doctors regardless of the evidence because doctors could not make mistakes and an adverse verdict would ruin their careers. All said that they followed the rules, did not inject personal beliefs or opinions in lieu of evidence, and voted in Dr. Ali's favor based on their belief the evidence showed he complied with the standard of care.

3. The trial court's order

In a lengthy, considered order, the trial court denied the motion for new trial, stating that it gave more weight to the declarations of Willimann, Urciuoli, Wyss, and Vittorio than it did to the juror declarations plaintiffs submitted.

B. Motions for new trial based on juror misconduct

A litigant has a constitutional right to trial by an unbiased jury. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) Therefore, a verdict may be vacated, in part or in whole, on a motion for a new trial because of juror misconduct materially affecting a party's substantial rights. (§ 657, subd. (2).) When considering a motion for a new trial based on jury misconduct, a trial court must undertake a three-step inquiry. First, it must determine whether any affidavits supporting the motion are admissible under Evidence Code section 1150, which precludes considering evidence demonstrating the effect of statements or events on a juror's mental processes. (People v. Danks (2004) 32 Cal.4th 269, 301 302.) Juror affidavits may be used to impeach a verdict if they refer to objectively ascertainable statements, conduct, conditions or events that may have improperly influenced the verdict, but they may not be used to show the subjective reasoning processes of jurors. (Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 910; In re Hamilton (1999) 20 Cal.4th 273, 294.)

Second, if the juror affidavits are admissible, then the trial court must determine whether the facts establish misconduct. Lastly, the trial court must determine whether any misconduct was prejudicial. (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160 (Whitlock).)

We review for abuse of discretion the trial court's findings about the admissibility of evidence. (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345 (Barboni).) But review of a trial court's determination regarding whether misconduct occurred requires us to accept its credibility findings on questions of historical fact if supported by substantial evidence. (Ibid.) We then independently review whether a defendant was prejudiced by any juror misconduct. (Ibid.; Whitlock, supra, 160 Cal.App.4th at p. 158.) A finding of juror misconduct creates a presumption of prejudice that may be rebutted on a showing based on the entire record that there was no substantial likelihood the misconduct influenced the vote of one or more jurors. (People v. Solorio (2017) 17 Cal.App.5th 398, 407.)

The trial court ruled on evidentiary objections the parties had made to the jurors' declarations, but plaintiffs raise no issue on appeal as to those rulings.

C. Juror No. 4 Evelyn Cole

Plaintiffs first focus on Juror No. 4 Cole, asserting that she committed misconduct by stating at the outset of deliberations she had made up her mind that the doctors were not negligent. Although such a statement can show that a juror prejudged the case and therefore committed misconduct (see, e.g., Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 788), the trial court expressly credited the denials of Jurors Nos. 1, 3, 8, and 12 that Juror No. 4 made such a statement. Given that the record supports the trial court's credibility finding, we are required to accept it. (Barboni, supra, 210 Cal.App.4th at p. 345.)

Plaintiffs suggest we are not required to accept that credibility determination because only a declaration from Juror No. 4 Cole could rebut the evidence plaintiffs presented. The trial court found that plaintiffs presented no authority for that proposition and rejected it, as do we. Indeed, a case on which plaintiffs heavily rely, Tapia v. Barker (1984) 160 Cal.App.3d 761, does not support plaintiffs' suggestion. The plaintiff in that case supported a motion for a new trial based on jury misconduct with declarations from the two jurors who had dissented from the judgment. In finding that those declarations established misconduct, the appellate court emphasized that no counter declarations had been filed, and therefore the misconduct was deemed established. (Id. at pp. 764, 766.) That is not the case here. Here, the defense filed counter declarations, and the totality of the declarations supports the trial court's credibility findings.

Moreover, even assuming that Juror No. 4 did say she had made up her mind at the outset of deliberations, this reflects human nature and does not necessarily amount to misconduct. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 75.) Where a juror holds a preliminary view about the case, the juror does not violate the court's instructions if the juror's mind remains "open to a fair consideration of the evidence, instructions, and shared opinions expressed during deliberations." (Id. at p. 73.) While jurors Oliver and Gonzalez discussed what Juror No. 4 said at the beginning of deliberations, they said nothing about what she did thereafter, other than vote in defendants' favor. Based on all of the declarations, including Oliver's and Gonzalez's, it is clear that the jurors continued to robustly deliberate over two days. Nothing in the declarations shows that Juror No. 4 failed to participate in those discussions or refused to consider the evidence.

D. Juror No. 2 Lagason

Next, plaintiffs argue that Juror No. 2 Lagason committed misconduct by citing her experience as a certified nursing assistant, stating there was no negligence because healthcare providers function as a team, and expressing resentment that a nurse had to testify. While plaintiffs correctly point out that jurors may not consider evidence outside what was presented at trial (see generally Whitlock, supra, 160 Cal.App.4th at p. 161), it is not clear that Juror No. 2 violated this rule, even assuming she made the challenged statements. Rather, jurors do not leave their life experiences at the deliberation door. (McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 263.) Using one's experiences to evaluate evidence is appropriate, although basing an opinion on specialized information from outside sources is not. (People v. Allen and Johnson, supra, 53 Cal.4th at p. 76.) We discern nothing wrong with Juror No. 2 (or any other juror) referencing her medical background in the absence of a showing she injected some specialized information into the discussions.

Further, we cannot connect any resentment the juror felt about a nurse having to sit for a deposition to misconduct. Jurors may express themselves vigorously and even harshly, and expressions of frustration, temper, and strong conviction are not misconduct. (People v. Engelman (2002) 28 Cal.4th 436, 446.)

As for the juror's alleged belief that there was no negligence because healthcare providers function as a team, this is the type of statement that a trial court should be wary of considering under Evidence Code section 1150 because it implicates the juror's mental process. In any event, plaintiffs assign this statement more meaning than it can support, because it is unclear what the juror meant. Did she mean that everyone did what they should have done, or did she mean that someone on the team messed up, thereby hurting the rest of the team?

Plaintiffs also complain that the statement is problematic because it was contrary to their position that the healthcare providers had not worked as a team. While the juror's belief about how healthcare providers should work together might have been contrary to what plaintiffs believed the evidence showed, it is unclear how this injected outside, specialized information into deliberations. (Compare McDonald v. Southern Pacific Transportation Co., supra, 71 Cal.App.4th at pp. 262, 267 [juror committed misconduct by introducing specialized subjects of sensors and commenting on the feasibility of installing crossing gates during deliberations, on which no evidence had been presented].) Rather, the juror was entitled to disbelieve plaintiffs' interpretation of the evidence.

E. Juror No. 12 Urciuoli

There is no dispute that Juror No. 12 Urciuoli called plaintiffs' counsel a bully. However, he denied basing his vote in Dr. Ali's favor on his unfavorable view of counsel. The trial court credited this denial, and substantial evidence supports it. (See Barboni, supra, 210 Cal.App.4th at p. 345.) And, as we have said, a juror's harsh expressions of opinion are not misconduct. (See, e.g., People v. Engelman, supra, 28 Cal.4th at p. 446.)

F. Collateral sources and Walter's comparative fault

In addition to charging specific jurors with misconduct, plaintiffs contend that jurors generally considered matters that had been excluded via motions in limine, namely, that Walter might get free medical care because he was a Canadian citizen, and they blamed him for his heart attack.

First, Gonzalez said in his declaration that jurors had discussed that perhaps Walter had access to Canada's universal healthcare system and could get free medical care in the future. However, the trial court sustained the defense objection to this portion of Gonzalez's declaration, and plaintiffs do not address that ruling on appeal. In any event, the trial court credited Juror No. 1 Willimann's statement that she did not recall a discussion about Walter's possible Canadian citizenship during deliberations but did recall discussions about whether he was Canadian after a verdict had been reached. The trial court credited her declaration. (See Barboni, supra, 210 Cal.App.4th at p. 345.)

Second, plaintiffs argue it was misconduct for jurors to discuss whether Walter contributed to his heart attack by neglecting to get regular checkups. Setting aside that the trial court credited the statements of jurors denying that they based their verdict on this, plaintiffs' argument inappropriately links what happens during jury deliberations to evidentiary rulings obtained via motions in limine. To be sure, those rulings limited what counsel could say and do at trial. But they do not necessarily dictate what jurors may do in a jury room. Rather, comments about Walter's failure to get regular checkups tread closely to Evidence Code section 1150's prohibition against considering evidence of jurors' thought processes, as the trial court found in sustaining the defense objection number 20 to statements in the jury room that Walter had not taken proper care of himself. Plaintiffs do not address that evidentiary ruling.

Moreover, evidence of Walter's pre-heart attack medical history was introduced, so that jurors might have mentioned it during deliberations is unsurprising. In any event, absolutely nothing in the declarations, including Oliver's and Gonzalez's, suggests that the judgment was based on an improper consideration of contributory or comparative negligence.

We come to a similar conclusion regarding a juror's alleged expression of concern that finding Dr. Ali guilty of negligence might affect his career. Aside from the Evidence Code section 1150 problem, Juror No. 3 Wyss denied making the statement, and the trial court credited that denial.

In sum, the trial court properly found that juror misconduct did not occur. We therefore need not address prejudice.

II. Attorney misconduct

In addition to juror misconduct, plaintiffs contend that defense counsel committed misconduct by suggesting Walter was contributorily negligent, injecting plaintiffs' Canadian nationality into the case, and soliciting standard of care testimony from Dr. Vasilomanolakis. No prejudicial misconduct occurred.

A. Motions for new trial based on attorney misconduct

Attorney misconduct is a ground for a new trial as an irregularity in the proceedings. (Los Angeles v. Decker (1977) 18 Cal.3d 860, 870; Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) For misconduct to require reversal of a jury's verdict, the misconduct must be prejudicial. In evaluating whether claimed attorney misconduct is prejudicial, courts should examine the nature and seriousness of the misconduct; the general atmosphere of trial, including the judge's control of it; the likelihood of actual prejudice on the jury; and the efficacy of objections or admonitions under all the circumstances. (Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559, 568, citing Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 320- 321.)

Whether to grant or to deny a motion for new trial rests in the trial court's discretion, and its ruling will not be disturbed on appeal absent a showing of manifest abuse. (Simers v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248, 1275-1276.)

B. Walter's contributory negligence

The trial court granted plaintiffs' motion in limine to exclude any evidence of Walter's contributory or comparative negligence. Plaintiffs contend that defense counsel violated that evidentiary ruling by insinuating that Walter was to blame for his heart attack. As we explain, no prejudicial misconduct occurred.

A tortfeasor takes the plaintiff as the tortfeasor finds him. (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 626.) This principle, as applied in the medical malpractice context, places the focus on the injury caused by the negligent treatment and not on the original injury that created the need for treatment. (Id. at p. 627.) Thus, in Harb, evidence that the plaintiff, who suffered a stroke, had failed to take medication to control his high blood pressure should have been excluded in a trial about whether delay in getting him treatment exacerbated his condition.

Although the trial court here excluded similar evidence and argument, plaintiffs nonetheless fault defense counsel for remarking on and eliciting evidence about Walter's medical history. However, unlike in Harb, questions about Walter's medical history were relevant to corroborate his testimony or to impeach him. For example, plaintiffs contend that defense counsel improperly highlighted that Walter said Dr. Sheldon Tobe was his primary care physician. There was evidence to the contrary that Dr. Tobe was Walter's business partner and friend who sometimes treated Walter, but he was not Walter's primary care physician. This was proper impeachment that went to whether Walter had misrepresented his medical history.

Similarly, plaintiffs take issue with defense counsel eliciting that Walter told Dr. Vasilomanolakis that he was having arm pain off and on for the past six months, which he had not mentioned to Drs. O'Brien and Ali. But what Walter reported and to whom about his pain to his physicians was clearly relevant to explain their treatment plans.

Comments the Ali defendants' counsel made in closing are perhaps closer to the type of evidence Harb prohibits. In response to plaintiffs' counsel's argument that the doctors had made certain choices about Walter's care, defense counsel replied that people make choices. Defense counsel then questioned how often Walter had his blood pressure monitored, stating, "I'm not saying Mr. O'Rourke was negligent. And I think, if we're honest about the choices we make and the things we do-I'm not trying to be insulting to Mr. O'Rourke. I'm not trying to be insulting to his wife, but let's be real. The man did not go get annual physicals and checkups. The man never had his cholesterol checked. The man clearly had evidence of hypertension when he showed up at the hospital that day. That is not to be disrespectful to Mr. O'Rourke, but let's look at the whole picture here and let's be honest about it. Those were choices that were made."

First, as the trial court noted in denying the new trial motion, plaintiffs' counsel did not object to many of the statements they now complain constitute misconduct, including this one. Such failure to timely object and to request an admonition forfeits the issue on appeal unless an objection and admonition would have been futile. (See People v. Hoyt (2020) 8 Cal.5th 892, 942-943.) Plaintiffs make no showing or argument that it would have been futile to object. In any event, defense counsel qualified his comment by saying he was not attributing negligence to Walter.

Second, this could be a fair comment on the evidence. (See People v. Ledesma (2006) 39 Cal.4th 641, 726 [prosecutor may fairly comment on evidence, including reasonable inferences or deductions drawn from it].) The evidence was that Walter told the doctors he had no relevant medical history: he did not tell them he failed to have regular check-ups and blood tests. There is a difference between the two. Saying that one has no history of, for example, high cholesterol is not the same as saying one has not had their cholesterol checked in years. And this difference might have meant something to the treating doctors. Indeed, the doctors testified that medical history was relevant to a patient's risk assessment score.

Finally, even if the comments could be construed as misconduct, they were not prejudicial. Instead, the comments were fleeting, comprising less than a page in a lengthy closing argument. (See, e.g., Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802-803 [offending references were mere fraction of closing argument and miniscule part of 10-week trial].) And as we have said, defense counsel repeatedly told the jury he was not saying Walter was negligent. Further, the jury instructions mitigated any prejudice. (See generally id. at pp. 803-804 [considering ameliorating effect of jury instructions].) The jury was instructed it could use Walter's statements to his doctors about his medical history in examining the basis for the doctors' medical opinions. The jury could not "use them for any other purpose. However, a statement" by Walter to Drs. O'Brien and Ali "about his current medical condition may be considered as evidence of that medical condition."

And although we presume the jury followed this instruction (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 803), plaintiffs cite Jurors Gonzalez's and Oliver's declarations as evidence they did not. However, as we have said, the trial court credited the opposing jurors' declarations denying that any juror said or did anything to suggest Walter was to blame for his heart attack.

C. Plaintiffs' Canadian nationality

In a civil action for personal injury, evidence of a person's immigration status is inadmissible. (Evid. Code, § 351.2.) The trial court accordingly excluded references to plaintiffs' status as Canadian citizens. Plaintiffs argue that defense counsel violated this ruling by objecting to "minor and oblique references" to their presence in California. The objections, plaintiffs assert, highlighted their immigration status and made them look like "shifty" foreigners profiting from higher medical costs in the United States and leading jurors to speculate that Walter could get free healthcare in Canada.

Our review of the record, however, shows that at times it was plaintiffs' counsel who drew attention to the issue. While examining Wendy on direct, for example, Wendy suggested that she and Walter might want to live in California. Defense counsel objected, and plaintiffs' counsel agreed not to lead her client. But Wendy almost immediately thereafter testified that they wanted to live in California because Walter was a surfer. The trial court sustained defense counsel's objection, struck the testimony, and at sidebar pointed out that plaintiffs' counsel was eliciting matters that violated plaintiffs' own motion in limine. Plaintiffs' counsel said she would reinstruct her client about the parameters of her testimony. Not long thereafter however, the trial court called for a sidebar after Wendy testified that Walter was going to work in Palm Desert. The trial court admonished plaintiffs' counsel that she kept bringing up issues raising an inference the plaintiffs were living in California, so if she did it again, the trial court was going to find that plaintiffs had opened the door to where Walter resided.

We therefore cannot agree that the totality of this record shows either that it was defense counsel who drew attention to this issue or that defense counsel somehow committed misconduct by insisting on adherence to a ruling in plaintiffs' favor. While the ruling certainly required all parties to use some awkward phrasing, for example, referring to plaintiffs' California residence as "the place they were staying" and to the Canadian hospitals Walter went to by acronyms, our review of the record reveals no inappropriate attempt to portray plaintiffs as shifty, freeloading foreigners. The record also shows that the trial court considered plaintiffs' concerns and acted properly to control the proceedings. (See Martinez v. Department of Transportation, supra, 238 Cal.App.4th at p. 568.)

D. Dr. Vasilomanolakis's testimony

Originally a defendant, Dr. Vasilomanolakis was dismissed before trial. At trial, he testified as a treating physician and was precluded from testifying whether Drs. O'Brien and Ali met the standard of care. Plaintiffs now argue that defense counsel violated that ruling.

A treating physician like Dr. Vasilomanolakis can sometimes be transformed into an expert if counsel supplies the doctor with additional information and asks him to form an opinion based on that information. (Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1521 (Dozier).) When that happens, "the treating physician goes beyond the traditional role of examining a patient by receiving additional materials from counsel after his deposition and using them to form an opinion about another doctor's adherence to the standard of care, and the rules for disclosing new information from a retained expert apply." (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 245.)

Plaintiffs argue that defense counsel violated Dozier by eliciting expert testimony from Dr. Vasilomanolakis via a sleight of hand. That is, defense counsel asked the doctor what he knew about professional guidelines, and then linked that to his review of Drs. O'Brien's and Ali's records, implying that they met those guidelines. Plaintiffs objected on that ground, and the trial court overruled the objection.

We discern no misconduct. Rather, Dr. Vasilomanolakis reviewed Drs. O'Brien's and Ali's records as a matter of course, to understand how Walter had been treated up to that point and to help formulate his care going forward. As the trial court noted, this was foundational evidence. Indeed, the doctor said that based on his review of the chart and Walter's status when the doctor was contacted about him, Walter's progression to a STEMI was not something he anticipated. In his entire career, he had seen that happen maybe once before. This was proper testimony based on his status as Walter's treating physician.

Plaintiffs further argue that defense counsel in closing argument used Dr. Vasilomanolakis's testimony to show that defendants met the standard of care. In the context of pointing out that plaintiffs' own experts gave different opinions about, for example, when the troponin test should have been repeated, defense counsel referred to Dr. Vasilomanolakis as the one doctor who wasn't paid and who had been clear that "there was no cardiac emergency," Walter was low risk, and there was no indication for intravenous heparin and nitroglycerin. These were fair comments on the evidence.

Also, plaintiffs did not object to these comments, thereby forfeiting any complaints about them. (See People v. Hoyt, supra, 8 Cal.5th at pp. 942-943.) To the extent the argument was improper, an admonition could have cured any harm.

III. Redesignation of Dr. Alan Brown

Plaintiffs contend that defense expert Dr. Alan Brown should have been precluded from testifying because although he had originally been designated as an expert, the defense had withdrawn his designation. No prejudicial error occurred in allowing Dr. Brown to testify at trial.

A. Additional background

In July 2017, the Ali defendants designated Dr. Brown, a cardiologist, as an expert. A year later, in June 2018, defense counsel told plaintiffs that Dr. Brown, who had not been deposed, would not testify at trial and "de-designated" him. Defense counsel did so because he thought that Dr. Brown's testimony would be duplicative of another defense expert, Dr. Kern, on the issue of damages and Walter's life care plan, which is a plan to identify what a disabled person will need over their lifetime. The defense continued to retain Dr. Brown as a consultant.

When Dr. Kern failed to testify at his October 2018 and April 2019 depositions about the O'Rourkes' damages and Walter's life care plan, defense counsel changed his mind about Dr. Brown testifying at trial and informed plaintiffs' counsel on August 26, 2019, that Dr. Brown would testify and offered dates for his deposition. At that time, the cut-off for expert discovery was September 30, 2019, and trial was scheduled for October 15, 2019.

When plaintiffs objected to redesignating Dr. Brown, the Ali defendants brought an ex parte application and then, at the trial court's request, a noticed motion. The Ali defendants argued that Dr. Brown had been designated as an expert and never formally undesignated and therefore he should be allowed to testify. They alternatively argued that if the trial court found that Dr. Brown had been undesignated as an expert, then they should be granted leave to augment their expert list. Counsel explained that due to mistake, inadvertence, surprise or excusable neglect, he had failed to realize sooner that Dr. Kern would not testify about plaintiffs' life care plan. The Ali defendants' counsel agreed to make Dr. Brown available for deposition and to pay for it. The defense further argued that excluding Dr. Brown would severely prejudice defendants because no other witness could provide the foundation for the cardiology portion of the defense life care plan.

Plaintiffs opposed the request to redesignate Dr. Brown, pointing out that they had not deposed him based on the Ali defendants' representations that they were undesignating him as an expert. Plaintiffs also pointed out that Dr. Kern had said at his October 2018 and April 2019 depositions that he would not testify about damages and plaintiffs' life care plan. Therefore, the defense knew since at least April 2019 that Dr. Kern would not testify about damages; yet, they did not redesignate Dr. Brown until August 2019. As for prejudice, plaintiffs argued that redesignating Dr. Brown on the eve of trial would require them to redepose other experts. In contrast, defendants were not prejudiced because they had other experts to testify about plaintiffs' damages.

At the hearing on the motion, the trial court said its tentative was to deny the motion. However, defense counsel admitted fault for the late redesignation of Dr. Brown, saying it resulted from his mistake and not any gamesmanship. He implored the trial court not to punish his clients for his mistake, saying only Dr. Brown could testify about a $10 million dollar difference between what plaintiffs sought for damages in their life care plan and what the defense found was reasonable.

The trial court said it would further "consider in the interest of justice versus all the code and see whether or not there is good cause." After taking the matter under submission, the trial court granted the motion to redesignate Dr. Brown as an expert witness for the limited purpose of laying the foundation for the costs of the defense life care plan as it related to cardiology. The trial court ordered defendants to make the doctor available for deposition no later than October 4, 2019, and to reimburse plaintiffs all costs associated with deposing him. The doctor was deposed, and he testified at trial.

B. The trial court did not abuse its discretion

Expert witness discovery statutes are designed to give fair notice of what an expert will say at trial, allowing parties to assess whether to depose the expert, to explore the relevant subject area at any deposition, and to select an expert who can give a competing opinion. (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147.) Untimely disclosure of experts frustrates the purposes of the discovery statutes and" 'should be permitted, with appropriate safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.'" (Ibid.)

The discovery statutes accordingly provide for simultaneous exchange of expert trial witness information. (§§ 2034.210, 2034.260.) A party who has timely exchanged expert witness information may seek leave to augment its witness list. (§ 2034.620.) A trial court may grant such leave "only if all of the following conditions are satisfied: [¶] (a) [t]he court has taken into account the extent to which the opposing party has relied on the list of expert witnesses[;] [¶] (b) [t]he court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits[; and] [¶] (c) [t]he court has determined either of the following: [¶] (1) [t]he moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness[; or] [¶] (2) [t]he moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: [¶] (A) [s]ought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony[; and] [¶] (B) [p]romptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action." (Ibid.)

Leave to augment an expert witness designation is conditioned on the moving party making the expert available immediately for a deposition and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, continuing trial, and awarding costs to the opposing party. (§ 2034.620, subd. (d).)

Whether to grant a motion to augment an expert witness designation is subject to the trial court's discretion. (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.)

We cannot find that the trial court here abused its discretion in allowing Dr. Brown to testify. The trial court clearly took into account the extent to which plaintiffs had relied on defendants' de-designation of Dr. Brown and alleviated any prejudice by ordering the doctor's immediate deposition and defendants to pay for it. Plaintiffs counter that they were still prejudiced because their experts had no time to review Dr. Brown's testimony. However, the expert discovery cut-off was a month from when the motion was heard and trial was two months away. And Dr. Brown was deposed on October 3, 2019, 11 days before trial began on October 15. While we are sympathetic to any last-minute scrambling plaintiffs had to do to prepare their response to his testimony, the nature of discovery means that somebody's deposition is always last, requiring witnesses and experts to review and account for it, perhaps in a short timeframe.

Plaintiffs also argue that they were prejudiced because Dr. Brown, thinking he would not testify at trial, destroyed his case file. The destruction of Dr. Brown's case file was the subject of another of plaintiffs' motions in limine, which was denied. Plaintiffs do not contend on appeal that the trial court's order on that motion was in error. Plaintiffs also complain that Dr. Brown produced a never-before-seen spreadsheet during trial. However, plaintiffs' counsel said she didn't have a problem with it except for one column, which defense counsel blocked out with a post-it. Also, it appears that the spreadsheet merely compared opinions offered at trial.

The trial court otherwise acted within its discretion to find that the defense moved promptly to augment its expert designation after deciding to have Dr. Brown testify. (§ 2034.620, subd. (c)(2)(A).) Defense counsel said he asked to redesignate Dr. Brown upon realizing the necessity for his testimony and admitted his mistake in, first, failing to realize that Dr. Kern was not going to testify about damages and, second, for failing to realize it sooner. The trial court was well within its considerable discretion to accept that explanation and to conclude that the possible harm to the defense from excluding the evidence weighed in favor of permitting the testimony, especially given the absence of prejudice to plaintiffs, that Dr. Brown was immediately available for his deposition, and that the defense had to pay for it.

Even if the trial court abused its discretion, no miscarriage of justice occurred in allowing Dr. Brown to testify. His testimony was relevant to damages, which was an issue the jury never reached because it found that the doctors were not negligent. Indeed, plaintiffs admit in their opening brief that his testimony "focused almost exclusively" on plaintiffs' experts' opinions about Walter's future care expenses.

Plaintiffs nonetheless argue that Dr. Brown's testimony infected liability issues. That is, Dr. Schapira testified as Walter's treating physician (he had recommended a heart transplant) and as an expert on the future care Walter would need. Plaintiffs reason that to the extent Dr. Brown cast doubt on Dr. Schapira's assessment of Walter's future needs, that would also cast doubt on Dr. Schapira's (and perhaps Walter's) credibility as a whole. Thus, Dr. Brown's testimony bled into issues other than damages. We agree that how a jury interprets and applies any piece of evidence can be complex. (See, e.g., Stevens v. Parke, Davis &Co. (1973) 9 Cal.3d 51, 67-68.) Even so, based on our review of the entire record, even if we were to find the admission of Dr. Brown's testimony erroneous on a discrete damages issue that the jury never reached, it did not so infect this complex trial that reversal is warranted.

IV. Individual and cumulative error

Because we have found that no misconduct or prejudicial error occurred, we need not address plaintiffs' argument that any individual or cumulative impact of the errors require reversal.

That being said, we take issue with plaintiffs' assertion that there was individual and cumulative error because "[u]nrebutted testimony" showed Dr. Ali breached the standard of care. By this, plaintiffs appear to argue that the evidence compelled judgment in their favor. (See generally In re I.W. (2009) 180 Cal.App.4th 1517, 1528 [where issue turns on failure of proof, appellate court determines whether evidence compels judgment in appellant's favor as a matter of law, asking whether evidence was uncontradicted, unimpeached, and of such a character and weight as to leave no room for a contrary finding], overruled on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989.)

Although plaintiffs moved for judgment notwithstanding the verdict on the ground of insufficiency of the evidence, their briefs do not include an appeal from the order denying that motion. (See § 904.1, subd. (a)(4) [order denying motion for judgment notwithstanding the verdict is appealable].)

Although plaintiffs argue that Walter's pain required Dr. Ali to repeat the troponin test sooner, there was conflicting evidence about Walter's pain level and what he told the nurses and doctors about it. As for whether Dr. Ali should have repeated the troponin test sooner, there was conflicting testimony about that as well. Like most professional negligence actions, this was a battle of experts. Defense expert Dr. Eilbert said that if troponin is drawn within the first six hours of the onset of symptoms, a second draw should be done eight to 12 hours after initial presentation. According to him, Dr. Ali complied with the standard of care when repeating the troponin test at 1:00 p.m. and at all times when caring for Walter. Defense expert Dr. Kern concurred that the standard of care required a second troponin draw in eight to 12 hours after the first. While plaintiffs' experts testified to the contrary, the jury was entitled to reject that testimony." '[T]he jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material.'" (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at pp. 67-68.) In short, there was no unrebutted testimony that compelled a verdict in plaintiffs' favor.

V. The 998 offers and motion to tax costs

Plaintiffs contend that defendants were not entitled to costs because their 998 offers misstated the law and were unreasonable and not made in good faith. We reject this contention.

A. Additional background

The Ali defendants and the O'Brien defendants separately served 998 offers. On May 27, 2016, the Ali defendants served their 998 offer to waive costs and fees in exchange for a stipulated judgment in their favor. After stating the terms of the offer in five numbered paragraphs, the offer then stated that if plaintiffs did not accept it, the Ali defendants intended "to seek recovery of costs, including the costs of experts' fees incurred as reasonably necessary for" trial preparation. The offer added that recoverable expert costs included "those incurred before the section 998 offer." (Italics added.) Plaintiffs served a written objection to the offer on the grounds it was vague, ambiguous, and not sufficiently certain, was not made in good faith, and did not accurately state the facts and law.

Dr. O'Brien and his medical corporations and Dr. Ali and his medical corporations each served separate offers on Walter and Wendy, one from each defendant to each plaintiff.

Just before the October 15, 2019 trial, the O'Brien defendants served their 998 offer on October 3, 2019, also offering to waive costs in exchange for a dismissal with prejudice. Their 998 offer stated that if plaintiffs failed to obtain a more favorable judgment, then plaintiffs "shall not recover [their] costs and shall pay the defendan[ts'] costs from the time of this offer. In addition, the court, in its discretion, may require" plaintiffs to pay defendants' "costs from the date the complaint was filed as well as a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of the parties, actually incurred and reasonably necessary" to prepare for trial.

Plaintiffs did not accept either offer. So, after defendants prevailed, they filed separate memoranda of costs. The O'Brien defendants requested $156,332.45 in costs, which included $107,506.14 in expert witness fees. The Ali defendants requested $151,990.32 in costs, which included $84,602.67 in expert witness fees.

Plaintiffs moved to tax costs. They argued that the 998 offers misstated that plaintiffs could be liable for preoffer expert witness fees instead of only postoffer ones. Further, the offers were not made in good faith and were unreasonable. Defendants opposed the motion, although the O'Brien defendants reduced their request for expert witness fees from $107,506.14 to $43,841.52, conceding that fees incurred before they served their offers in October 2019 were not recoverable.

The trial court found that the O'Brien defendants' 998 offer did not misstate the law so as to render it invalid. The trial court also found that the 998 offer was not token in nature. Instead, costs were "substantial" when the offer was made "such that the offer had real economic value." The trial court added, "While Plaintiffs were clearly claiming substantial damages in comparison to the waiver of costs, there was a very real possibility, at the time of the offer, that Defendants would prevail entirely in the case."

As to the Ali defendants, the trial court similarly rejected plaintiffs' argument that the 998 offer was invalid because it incorrectly stated that plaintiffs were liable for preoffer expert witness fees. The trial court found that the terms of the offer were properly stated: only the legal effect of failing to accept was misstated. Further, plaintiffs were represented by a competent attorney who knew that this was a misstatement of law. And, if anything, a belief that preoffer expert fees could be assessed made plaintiffs' exposure higher, making them more likely to accept the offer. Thus, any misstatement could not have adversely affected their decision.

Having overruled plaintiffs' objections, the trial court awarded the Ali defendants $99,068.51 in costs, which included $70,087.16 in expert witness fees, and awarded the O'Brien defendants $69,927.75 in costs, which included $36,483.89 in expert witness fees.

B. Overview of section 998 and standard of review

Recovery of costs in a civil action is determined by statute. (See, e.g., §§ 1032, subd. (b), 1033.5.) Costs of expert witnesses may be recovered if a plaintiff rejected a pretrial 998 offer and did not receive a more favorable judgment. (§ 998; see Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018-1019.) Section 998, subdivision (b), provides that not less than 10 days before trial, a party may serve an offer to settle. The offer shall include a statement of the terms and conditions. If a defendant's offer is not accepted and the plaintiff fails to obtain a more favorable judgment, "the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer," including, in the court's discretion, a reasonable sum to cover postoffer costs of expert witnesses. (§ 998, subd. (c)(1).)Section 998's purpose is to encourage settlement of litigation without trial. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1483 (Adams).)

Before 2016, a party could recover expert witness fees irrespective of when they were incurred in relation to the offer. (See generally Regency Outdoor Advertising Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 532.) Since January 1, 2016, section 998 has limited recovery of expert witness fees to those incurred postoffer.

A 998 offer must be sufficiently specific to allow its recipient to evaluate its worth and to make a reasoned decision whether to accept it. (Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 833.) Any nonmonetary terms or conditions must be sufficiently certain and capable of valuation to allow the court to determine whether the judgment is more favorable than the offer. (Ibid.) An offer includes all its terms and conditions and must be evaluated in light of them. (Ibid.)

An offer is valid only if made in good faith. (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924 (Licudine).) Good faith requires the offer to be reasonable under the circumstances of the case, meaning it must have some reasonable prospect of acceptance. (Ibid.) "Whether a section 998 offer has a reasonable prospect of acceptance is a function of two considerations, both to be evaluated in light of the circumstances' "at the time of the offer"' and' "not by virtue of hindsight."' [Citations.] First, was the 998 offer within the 'range of reasonably possible results' at trial, considering all of the information the offeror knew or reasonably should have known? [Citation.] Second, did the offeror know that the offeree had sufficient information, based on what the offeree knew or reasonably should have known, to assess whether the 'offer [was] a reasonable one,' such that the offeree had a 'fair opportunity to intelligently evaluate the offer'? [Citations.] These two considerations assess whether the offeror knew that the 998 offer was reasonable, first, from the offeror's perspective and, second, from the offeree's perspective. In light of this focus on the reasonableness of the offeror's conduct in making the 998 offer (which makes sense because the issue is the validity of the offer in the first place), whether the offeree acted reasonably in rejecting that offer is irrelevant." (Id. at pp. 924-925.) Relevant to this second question are a number of circumstances, including how far into the litigation the 998 offer was made, what information bearing on the reasonableness of the 998 offer was available to the offeree before its expiration, whether the party receiving the 998 offer alerted the offeror that it lacked sufficient information to evaluate the offer and, if so, how the offeror responded. (Id. at pp. 925-926.)

A section 998 offer is strictly construed in favor of the party to be subjected to its operation. (Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 799.) Where the issue turns on the interpretation of the offer, our review is de novo. (Timed Out LLC v. 13359 Corp. (2018) 21 Cal.App.5th 933, 942 (Timed Out).) However, whether a 998 offer was reasonable and made in good faith is left to the trial court's sound discretion, and we will not reverse its decision except on a showing of clear abuse. (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877.) The party appealing the trial court's decision to award costs bears the burden of establishing that the trial court abused its discretion, and unless there has been a miscarriage of justice, we will not substitute our opinion for the trial court's. (Ibid.)

C. The validity of the 998 offers

Plaintiffs first argue that the O'Brien and Ali defendants' 998 offers were invalid because they misstated the law about what costs were recoverable should plaintiffs refuse the offers and fail to obtain a more favorable judgment. The trial court rejected plaintiffs' argument, and so do we.

In interpreting a 998 offer, we apply contract principles and give words their usual and ordinary meaning. (Timed Out, supra, 21 Cal.App.5th at pp. 942-943.) An otherwise clear 998 offer is not invalid simply because it does not precisely track the statute's language. (Berg v. Darden (2004) 120 Cal.App.4th 721, 728.) Applying these principles to the 998 offers, we find that the terms and conditions of the offers were unambiguous: both the Ali defendants and the O'Brien defendants offered to waive costs in exchange for dismissals with prejudice.

Although the terms and the conditions of the offers were sufficiently clear, they contained incorrect or ambiguous statements about the consequences of failing to accept them. The Ali defendants' 998 offer stated that recoverable expert costs included "those incurred before the section 998 offer." (Italics added.) The O'Brien defendants' 998 offer ambiguously said both that (1) plaintiffs would pay defendants' costs from the time of the offer and (2) might have to pay defendants' "costs from the date the complaint was filed as well as a reasonable sum to cover costs of the services of expert witnesses ...." (Italics added.) While one reasonable interpretation is that "from the date the complaint was filed" modifies only the word "costs" immediately preceding it, and not "costs of the services of expert witnesses," which comes after the phrase, it is a clumsily written paragraph.

Still, there is a distinction between the terms of an offer and the consequences of not accepting it. The terms of the offer itself are, for the most part, up to the offeror. They just must be sufficiently clear. By way of example, the terms of the offer in MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, the main case plaintiffs cite, were not clear. The 998 offer in that Song-Beverly action included the term that the car company would repurchase the plaintiff's car "in an undamaged condition, save normal wear and tear." (Id. at p. 1050.) This term inserted uncertainty into the offer, which otherwise tracked the language of the Song-Beverly Act. Nor was it clear what would happen if the car company subsequently concluded that the car was damaged beyond normal wear and tear. Accordingly, the court found that the 998 offer was ambiguous and therefore invalid. (Ibid.; see, e.g., Chen v. Interinsurance Exchange of the Automobile Club (2008) 164 Cal.App.4th 117, 122 [release of "claims" in 998 offer was ambiguous because there was a pending claim].)

MacQuiddy is distinguishable because it concerned insufficiently clear terms of an offer. But, as we have said, the terms of the Ali and the O'Brien defendants' 998 offers were clear. It was the penalty or consequences for not accepting them that were less so. Even so, the consequences for failing to accept a 998 offer are a matter of statute. Section 998, subdivision (c)(1), provides that a consequence is the offeree may have to pay postoffer expert witness fees. The offeror has no power to deviate from this law. Stated otherwise, defendants could not impose a penalty on plaintiffs prohibited by statute. Plaintiffs were represented by competent counsel who would have known this.

For this reason, we are unpersuaded that the subjective belief of the O'Brien defendants' counsel about what section 998 provides is relevant.

Therefore, any misstatement of law in the penalty provisions of the 998 offers did not make it impossible for plaintiffs to evaluate their worth. Rather, the O'Brien defendants' 998 offer was made just over a week before trial began, and costs incurred up to that point were knowable, and expert witness fees that would be incurred postoffer and at trial were estimable. Similarly, the Ali defendants' 998 offer was made in May 2016, six weeks before trial was supposed to start. Although trial was continued, plaintiffs were more than able to evaluate that 998 offer as well.

For this reason, we also reject plaintiffs' argument that they were unable to calculate any offset based on the waiver of costs they might be entitled to against a future judgment.

D. The 998 offers were reasonable and made in good faith.

Next, plaintiffs contend that the 998 offers were unreasonable and not in good faith because plaintiffs were seeking significant damages (about $26 million in economic damages), and they had persuasive evidence of defendants' liability. As we explain, plaintiffs place too much emphasis on these factors.

Instead, whether a 998 offer was made in good faith "cannot be measured by the amount of claimed damages or a party's subjective belief in the case's value." (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1530; see also Najah v. Scottsdale Ins. Co. (2014) 230 Cal.App.4th 125, 145 [trial court did not abuse discretion in finding offer reasonable because although potential damages were extensive, there was a reasonable possibility liability did not exist].) A 998 offer may be reasonably realistic even though the offeree is unlikely to accept it as a result of its skewed valuation of the case. (Essex, at p. 1530; Adams, supra, 199 Cal.App.4th at pp. 1484-1485 [$10,000 offer reasonable, even though plaintiff sought $2 million in damages].)

Plaintiffs cite Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, to support their argument that the damages they were claiming shows that the 998 offers were unreasonable. The Pineda trial court found the defendant's 998 offer unreasonable because it was apparently small in comparison to the damages plaintiffs sought. The appellate court upheld the trial court's exercise of discretion despite the appellate court's observations that the defendant's "liability was tenuous indeed" and that the trial court's statement that the offer was not in good faith was "unnecessarily strong." (Id. at p. 63.) Pineda therefore is unpersuasive, and is at most a statement about the extreme deference we give to a trial court's exercise of discretion, even when the appellate court might have ruled otherwise had it been in the trial court's position.

Notwithstanding the damages claimed and any persuasive nature of plaintiffs' evidence, the reasonableness of the 998 offer depends on whether it was in the range of reasonably possible results at trial, considering the information available when the offer was made. (Licudine, supra, 30 Cal.App.5th at pp. 924925.) When the O'Brien defendants' 998 offer was made, discovery was complete and defense experts had offered opinions that the doctors met the standard of care. No other information remained to be discovered, and plaintiffs make no argument to the contrary. (Compare Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700-702 [low-ball offer can be unreasonable if offeror had information limiting exposure that was unknown to offeree].) In contrast to an offer made closer to a lawsuit's initiation (see, e.g., Najera v. Huerta, supra, 191 Cal.App.4th at p. 875 [offer made when complaint served], the offer's proximity to trial meant that the offeror and offeree had sufficient information to assess its reasonableness (see, e.g., Adams, supra, 199 Cal.App.4th at p. 1478 [offer made just before trial]).

Plaintiffs counter that the imminence of trial, which was taking place six years after the complaint had been filed, shows there was no reasonable chance they would accept the O'Brien defendants' offer, given the time and resources plaintiffs had invested. That may be, but it is not particularly relevant to whether the offer was in a reasonable range of possible outcomes and whether plaintiffs had sufficient information to evaluate the offer. (See Licudine, supra, 30 Cal.App.5th at p. 926 [that it was reasonable for offeree to reject offer is irrelevant].) What is relevant is the jury's verdict, which in Dr. O'Brien's case was unanimous. Although plaintiffs dismiss the verdict as Monday morning quarterbacking, it is actually prima facie evidence of the offer's reasonableness. (Santantonio v. Westinghouse Broadcasting Company (1994) 25 Cal.App.4th 102, 117.) Further, Dr. O'Brien's experts had offered and would offer at trial the opinion that he complied with the standard of care. That plaintiffs had competing experts who said the opposite does not necessarily show that the offer was unreasonable. In a professional negligence case such as this, competing experts is a matter of course. It cannot be that in every case where there are competing experts on the standard of care, a 998 offer to waive costs is unreasonable.

The same is true for the Ali defendants' 998 offer. The Ali defendants made their 998 offer in May 2016. At that time, they had just moved for summary judgment, plaintiffs had opposed the motion, and trial was then scheduled for July 2016. At least the parties' and a nurse's depositions had been taken, and Walter had provided discovery responses. Therefore, although trial would ultimately be continued for three years, the Ali defendants nonetheless made their 998 offer at a time when they thought trial was imminent and when there was sufficient evidence to evaluate the case, given that experts had submitted competing declarations about whether Dr. Ali had met the standard of care. Plaintiffs again make no argument that they had insufficient information to evaluate the offer. Instead, the record shows that a verdict in Dr. Ali's favor was within the reasonable range of possible outcomes based on the information known to the parties when the 998 offer was made.

The Ali defendants apparently took their motion for summary judgment off-calendar.

Citing Wear v. Calderon (1981) 121 Cal.App.3d 818, 820, plaintiffs next argue that the 998 offers were mere tokens and, as such, were not made in good faith. In Wear, at page 821, the defendant offered the personal injury plaintiff $1 before trial, and the jury later found in the defendant's favor, although it awarded the plaintiff $18,500 against other defendants. (Id. at p. 821.) The court said that a plaintiff may not reasonably be expected to accept $1 from a defendant exposed to this magnitude of liability, "unless it is absolutely clear that no reasonable possibility exists that the defendant will be held liable." (Ibid.)

Wear is distinguishable, first because the offers here were not nominal. When the O'Brien defendants made their 998 offer, the matter had been pending for six years and they had incurred about $50,000 in costs before trial, excluding expert witness fees, and those fees would be substantial once the many experts testified at trial. When the Ali defendants made their offer, the matter had been pending for about three years, so fewer costs had been incurred, but would rise significantly if experts testified at trial. While costs might be considered "nominal" in the abstract when compared to the $26 million plaintiffs sought in economic damages, under the appropriate standard, it is nominal only if a verdict in defendants' favor was not reasonably possible. In fact, the trial court noted that the costs were substantial in nature, so the O'Brien defendants' 998 "offer had real economic value" and there was "a very real possibility" they would prevail at trial. The trial court similarly noted that the Ali defendants' 998 offer was "more than a mere token and was made with the good faith belief" they "could prevail entirely in the case." (See generally Jones v. Dumrichob (1998) 63 Cal.App.4th 1258 [absence of a net monetary sum as part of 998 offer does not per se violate good faith requirement]; accord, Adams, supra, 199 Cal.App.4th at p. 1485 [waiver of costs substantially increased settlement's potential value].)

Nor does the record show that the trial court failed to consider factors relevant to its discretion, as plaintiffs argue. This experienced judge was intimately familiar with the case, having presided over pretrial matters and the lengthy trial. (See, e.g., Adams, supra, 199 Cal.App.4th at p. 1486 [trial judge can best evaluate reasonableness of 998 offer].) Although the trial court did not explain its reasoning in great detail, its statements that the offers were not token, that costs were substantial, and that the offers had real economic value show that it did consider the relevant facts and law.

We therefore conclude that the trial court did not abuse its discretion by finding that the offers were reasonable and made in good faith.


The judgment is affirmed. Defendants and respondents may recover their costs on appeal.

We concur: EGERTON, J., RICHARDSON, J. [*]

[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Summaries of

O'Rourke v. Ali

California Court of Appeals, Second District, Third Division
Oct 31, 2022
No. B305139 (Cal. Ct. App. Oct. 31, 2022)
Case details for

O'Rourke v. Ali

Case Details

Full title:WALTER O'ROURKE et al., Plaintiffs and Appellants, v. NAYYER Z. ALI et…

Court:California Court of Appeals, Second District, Third Division

Date published: Oct 31, 2022


No. B305139 (Cal. Ct. App. Oct. 31, 2022)