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Altwiji vs. Zdenek

This is a great example of why you want to work with a competent attorney if you decide to become an expert witness for court cases. No matter how prepared you are, and no matter how “right” your opinion is… it won’t matter if you don’t ever get to take the stand.

There are many reasons an “expert witness” might not get to take the stand… the case settles, the case is postponed, the opposing side stipulates to your findings, or your sides attorney failed to follow the
procedure of DESIGNATING his expert within the legal time frame.

ALTWIJI v. ZDENEK

ABBOTT ALTWIJI, Plaintiff and Appellant,

v.

GENE W. ZDENEK et al., Defendants and Respondents.

No. B213416.

Court of Appeals of California, Second District, Division Two.

Filed January 5, 2011.

Abbott Altwiji, in pro. per., for Plaintiff and Appellant.

Fonda & Fraser and Craig Donahue for Defendant and Respondent Gene W. Zdenek.

Lewis Brisbois Bisgaard & Smith, Howard A. SlavinJeffry A. Miller, and Matthew B. Stucky for Defendants and Respondents Kenneth R. Diddie and Edgar I. Thomas.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ASHMANN-GERST, J.

Plaintiff and appellant Abbott Altwiji (plaintiff) challenges a trial court order dismissal following a successful motion for summary judgment by defendant and respondent Gene W. Zdenek, M.D. (Zdenek) and a successful motion to preclude plaintiff’s presentation of expert witnesses at trial by defendants and respondents Kenneth R. Diddie, M.D. (Diddie) and Edgar I. Thomas, M.D. (Thomas) (Zdenek, Diddie, and Thomas collectively are referred to as defendants). We conclude that the trial court properly granted Zdenek’s motion for summary judgment and Diddie and Thomas’s motion to preclude plaintiff from presenting expert witness testimony. Accordingly, the order of dismissal is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff initiated this medical malpractice action on December 6, 2007. In his complaint, plaintiff alleges that defendants negligently treated him in connection with an “eye surgery and the complications arising therefrom.”

Zdenek’s Motion for Summary Judgment

On August 25, 2008, Zdenek filed a motion for summary judgment. In support, he offered an expert declaration from Dr. John D. Hofbauer. Dr. Hofbauer, a board certified opthamologist, declared that he was “familiar with the standard of care, as it existed in Southern California, from 2005 through 2006, applicable to ophthalmologists, with regard to office care and surgeries of the eye. Based upon [his] review of the materials [identified], as well as upon [his] education, training and experience, it [was his] opinion that the care and treatment rendered to [plaintiff] by [Zdenek] complied with the applicable standard of care.” Dr. Hofbauer also opined “to a reasonable degree of medical probability [that] there [was] nothing [Zdenek] did or failed to do which caused or contributed to any claimed injuries of [plaintiff].”

Plaintiff opposed Zdenek’s motion. He did not provide an expert declaration in support of his opposition.

Following oral argument, the trial court granted Zdenek’s motion. It ruled: “`When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.'” (SeeMunro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985 (Munro).) “Plaintiff failed to submit an expert declaration to controvert the expert declaration in support of [Zdenek’s] motion. Plaintiff has therefore failed to raise a triable issue of fact regarding [Zdenek’s] compliance with the applicable standard of care.”

Diddie and Thomas’s Motion to Preclude Plaintiff’s Presentation of Expert Testimony

On October 27, 2008, Thomas and Diddie served plaintiff with a demand for exchange of expert witness information pursuant to Code of Civil Procedure section 2034.220. In response, plaintiff served a “Method for Exchange of Expert Trial Witnesses Information,” indicating that he “decided that he should not presently intend to designate an eye expert witness to offer testimony in this action because [he] believes that to the extent that each defendant herein will play his own as an expert witness because each defendant is an expert live witness because he himself has been there as a live witness to the other defendants who were before him, who came after him knowing the damages beforehand. . . . [¶] . . . [A]ll defendants knew each and every damage which was done and by whom, and as each defendant would be testifying about his own role in causing the damage to the plaintiff which would be proven as each defendant testifies at the trial to which extent that his part caused more damages to cause plaintiff’s loss of vision to his right eye. [¶] . . . [T]hat means each defendant plans a defendant and an expert witness against the other two defendants. [¶] . . . Plaintiff was planning on bringing [Dr.] Peter Zeegen to testify as to what extent that he can testify and plaintiff does not see it as necessary.”

Plaintiff claims that he served a supplemental designation of expert witnesses on or about December 2, 2008, but Diddie and Thomas claim they never received it.

On December 4, 2008, Diddie and Thomas filed a motion in limine to preclude inquiry into the current medical opinion of undesignated physicians. They argued that since plaintiff failed to designate any expert witnesses on the initial exchange, he should be precluded from presenting expert opinion testimony at trial.

Plaintiff opposed their motion, admitting that although he “at first did not want to designate an expert witness[, he] later decided to designate” Dr. Zeegen.

Ultimately, the trial court granted Diddie and Thomas’s motion in limine on the grounds that plaintiff did not properly designate expert witnesses.

The trial court then dismissed plaintiff’s lawsuit on the grounds that, inter alia, given the nature of plaintiff’s case, expert witness testimony was essential to establish his claims and, because plaintiff failed to properly designate experts, he could not meet his burden at trial.

Order of Dismissal and Appeal

Plaintiff’s case was dismissed, and his timely appeal ensued.

DISCUSSION

The major problem with plaintiff’s appeal lies in his opening brief. It is largely unintelligible and even a cursory review of the opening brief reveals that it does not provide us with the basic information we need to determine what is being challenged by plaintiff. As another court observed in describing a similarly inadequate brief, “[i]ndeed, this document is strongly reminiscent of those magazine puzzles of yesteryear where the reader was challenged to `guess what is wrong with this picture.'” (People v. Dougherty (1982) 138 Cal.App.3d 278, 280.)

Despite being given an opportunity to submit a proper opening brief, plaintiff’s amended opening brief violates California Rules of Court, rule 8.204(a): It does not “support each point by argument and . . . by citation of authority” (rule 8.204(a)(1)(B); see also Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned argument]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant must present argument on each point made]). It does not “[s]upport [each] reference to a matter in the record by a citation to the volume and page number of the record where the matter appears” (rule 8.204(a)(1)(C)). It does not “[s]tate the nature of the action, the relief sought in the trial court, and the judgment or order appealed from” (rule 8.204(a)(2)(A)). It does not “[s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable” (rule 8.204(a)(2)(B)). And, it does not “[p]rovide a summary of the significant facts limited to matters in the record” (rule 8.204(a)(2)(C); see also Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115).

The opening brief contains numerous sections, which largely consist of a rambling discussion of plainly irrelevant facts. There is no legal authority; there is no discussion of the procedural history of the case; not until page 14 is there a citation to the record. Worse, both the opening brief and the reply brief are riddled with unfounded attacks on both defense counsel and the trial court.

“`The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel [or the litigant if, as here, the litigant chooses to represent himself]. Accordingly every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.] [¶] It is the duty of [an appellant], not of the courts, `by argument and the citation of authorities to show that the claimed error exists.’ [Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) Since the issues as raised in plaintiff’s opening brief are not properly presented or sufficiently developed to be cognizable, we decline to consider them and treat them as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) Nor does plaintiff’s election to act as his own attorney on appeal entitle him to any leniency as to the rules of practice and procedure; otherwise, ignorance unjustly is rewarded. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Lombardi v. Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208-209.)

Moreover, an appellate court presumes that the judgment appealed from is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (See Brewer v. Simpson (1960)53 Cal.2d 567, 583.) The appellant has the burden of overcoming the presumption of correctness, even when the appellate court is required to conduct a de novo review. “Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [the appellant’s] brief.” (Reyes v. Kosha (1998)65 Cal.App.4th 451, 466, fn. 6.)

Instead of focusing on these deficiencies, Zdenek’s opposition brief argues why the judgment should be affirmed. Reviewing the judgment de novo (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476), we readily conclude that the trial court properly entered summary judgment in favor of Zdenek.

“`California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting evidence.’ [Citations.]” (Munro, supra, 215 Cal.App.3d at pp. 984-985, see alsoHanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Here, Zdenek supported his motion for summary judgment with an expert declaration from Dr. Hofbauer. Plaintiff failed to provide a conflicting expert declaration.1 It follows that Zdenek is entitled to judgment.

For similar reasons, we conclude that the trial court did not abuse its discretion in granting Diddie and Thomas’s motion in limine to preclude plaintiff from presenting expert witness testimony at trial. (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.)

Code of Civil Procedure section 2034.210 permits a party to demand the exchange of expert witness information by all parties. The parties must simultaneously exchange expert witness information for any expert that the party expects to call at trial. (Code Civ. Proc., § 2034.260.) If a party unreasonably fails to designate an expert, the opposing party may object and the trial court must exclude from evidence the expert’s opinion testimony. (Code Civ. Proc., § 2034.300; see also Richaud v. Jennings (1993) 16 Cal.App.4th 81, 88-90.)

That is exactly what occurred here. Diddie and Thomas demanded an exchange of expert witness information. Plaintiff indicated that he would not be calling any expert witnesses. He was thus precluded from presenting any expert witness testimony at trial.

Plaintiff’s supplemental designation was simply too late. The statutory scheme requires a “`simultaneous’ exchange of information, in which each side must either identify any expert witnesses it expects to call at trial, or state that it does not intend to rely upon expert testimony. When it comes to issues that both sides anticipate will be disputed at trial, a party cannot merely `reserve its right’ to designate experts in the initial exchange, wait to see what experts are designated by the opposition, and then name its experts only as purported `rebuttal’ witnesses.” (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021.) Given that this action is a medical malpractice case, which requires expert testimony (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385), plaintiff reasonably should have anticipated that expert testimony was required and he should have designated experts in response to Diddie and Thomas’s demand. (Fairfax v. Lords, supra, at p. 1027.)

Without requisite expert testimony, it follows that the trial court properly dismissed plaintiff’s action against Diddie and Thomas.

DISPOSITION

The order of the trial court is affirmed. Defendants are entitled to costs on appeal.

We concur.

BOREN, P. J.

DOI TODD, J.

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