Filed 5/3/13 Zamora v. Palitz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

ANABELLA SOFIA ZAMORA, a Minor, etc., et
al.,                                                                                       F062898

         Plaintiffs and Appellants,                                             (Super. Ct. No. 376698)

                   v.
                                                                                        OPINION
HARVEY F. PALITZ,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Stanislaus County. William A.
Mayhew, Judge.
         Law Offices of Ian Herzog, Ian Herzog, Sandra Tyson, and Evan D. Marshall, for
Plaintiffs and Appellants.
         Galloway, Lucchese, Everson & Picchi, Karen A. Sparks, David R. Lucchese, and
Patricia A. Timm, for Defendant and Respondent.
                                                        -ooOoo-
         This appeal follows a judgment on a special jury verdict in a medical malpractice
action brought on behalf of twins who were born prematurely, Anabella and Christian
Zamora (appellants). Although the jury found that respondent Harvey F. Palitz, M.D.,
was negligent in treating the twins‟ mother, Christina Zamora, it found his negligence
was not a substantial factor in causing harm to the twins.
        Appellants contend that the trial court abused its discretion before trial by denying
them leave to augment their expert witness list to include a pathologist to address the
issue of identification of placental tissue samples. They argue that they were surprised,
through no fault of their own, by the deposition testimony of a defense expert pathologist
and, therefore, they should have been allowed to add an expert pathologist, although the
deadline for disclosing expert witnesses had passed.
        We conclude the trial court did not abuse its discretion and, further, appellants
have not demonstrated prejudice. We affirm the judgment.
                      FACTUAL AND PROCEDURAL HISTORIES
        Birth of the twins
        In August 2004, Christina and her husband Mark Zamora learned that Christina
was pregnant. Christina was diabetic and was expecting twins, and for these reasons, her
pregnancy was considered high risk. High-risk pregnancies pose a higher risk of an
adverse outcome, including premature birth. Christina engaged obstetrician and
gynecologist Palitz to manage Christina‟s care and deliver the twins. Perinatologist
Subhash Mitra also consulted on the pregnancy. Christina had a relatively uneventful
pregnancy until January 2005, and the babies were developing normally.
        Around 6:00 p.m. on January 6, 2005, Christina noticed a pinkish discharge and
became concerned. She telephoned Dr. Palitz, and he told her to keep her previously
scheduled appointment with Dr. Mitra the next morning. Around 9:00 p.m., Christina
began feeling tingling sensations in addition to the spotting. At midnight, she started
feeling cramping sensations, and Christina and Mark decided to go to the emergency
room.
        They arrived at the hospital shortly before 1:00 a.m. on January 7, 2005, and were
taken to the labor and delivery section of the hospital. Christina was having uterine


                                              2.
contractions about three to four minutes apart. A nurse spoke to Dr. Palitz by telephone
and described Christina‟s status. Dr. Palitz ordered terbutaline to stop the contractions
and a fetal fibronectin test. A positive fetal fibronectin test would indicate a high risk of
preterm labor. The nurse administered the fetal fibronectin test and observed that
Christina‟s cervix was closed. At 3:30 a.m., the nurse noted that Christina continued to
complain of uterine contractions four to five minutes apart. Around 3:50 a.m., the nurse
talked to Dr. Palitz again and he ordered nifedipine, another drug intended to stop the
contractions.1 Christina was told she could go home in 30 minutes. Christina and Mark
left the hospital around 4:30 a.m. Christina continued to have contractions at home and
was unable to sleep.
       That morning, Mark drove Christina to her 9:30 a.m. appointment with Dr. Mitra.
At the doctor‟s office, Christina‟s pain became worse. Mark explained that they had been
to the hospital and had a test to determine if Christina was in labor (the fetal fibronectin
test). An assistant went to look up the test results and returned with Dr. Mitra. He told
Christina and Mark that the fetal fibronectin test was positive and Christina would be
transferred to the hospital.
       Initially, Dr. Mitra told Christina and Mark he was going to try to stop the
contractions. Christina was given steroids to help the babies‟ lungs, magnesium sulfate,
which is a tocolytic, and antibiotics. Subsequently, however, Dr. Mitra observed that
Christina‟s cervix was dilated five or six centimeters, and he told Christina the babies
would have to be delivered. Anabella was delivered vaginally. Christian was transverse
and was delivered by caesarean section a few minutes later. The babies were taken to the
neonatal intensive care unit. Each baby weighed about one and a half pounds. Anabella
weighed 680 grams and Christian weighed 650 grams.


       1Medications   used to stop uterine contractions in order to stop or delay preterm
labor are called tocolytics. Terbutaline and nifedipine are both tocolytics.



                                              3.
       Following the birth of the twins, hospital staff set aside the placentas, which were
labeled “Twin A,” corresponding to the firstborn twin, Anabella, and “Twin B,” for the
second twin, Christian. The placentas were sent to the hospital‟s pathology laboratory,
and hospital pathologist Robert Purvis, Jr., examined .
the placental slides.2 For Twin A, he observed “a moderate infiltrate of neutrophils
primarily within the chorion but also within the amnion,” “some syncytial knots,” and
“acute inflammatory infiltrate extend[ing] over the fetal surface of the disk.” For twin B,
he observed “moderate infiltrate of neutrophils within the walls of the vessels [of the
umbilical cord],” “a marked infiltrate of neutrophils with some necrosis,” and “some
syncytial knots.”
       Dr. Purvis diagnosed “[m]oderate acute chorioamnionitis and meconium staining”
of Twin A‟s placenta and “[m]oderate acute funisitis and marked acute chorioamnionitis”
of Twin B‟s placenta. Chorioamnionitis is an infection of the fetal membranes involving
the chorion, which is the outer amniotic membrane and is part of the placenta, and the
amnion, which is the inner membrane. Funisitis is inflammation of the umbilical cord.
       Within a few weeks of their birth, the twins were moved to Lucile Packard
Children‟s Hospital in Palo Alto. When Anabella was seven days old, she had a bowel
perforation and went into cardiac arrest; as a result, she had a very low level of oxygen
for a prolonged time. Anabella stayed at the children‟s hospital for six months and
Christian stayed for four months. After Anabella was discharged from the hospital, she
used an oxygen concentrator 24 hours per day. She was also fed through a gastric feeding
tube and was connected to a feeding pump at night. Anabella remained on oxygen for a
year and a half and had a feeding tube for over five years. Christian did not require an
oxygen concentrator or any medical apparatus after he left the children‟s hospital.

       2Tissue  samples from the placentas were preserved in paraffin blocks. The
placental slides are very thin slices cut from the blocks and placed on glass slides for
examination under a microscope.



                                             4.
       In 2011, both twins were attending kindergarten. Anabella was not at grade level
in reading or math, and her teacher was unsure whether she should be promoted to first
grade. Christian was doing much better in school than Anabella, and his teacher believed
he would have an easier time progressing to first grade. Also in 2011, Anabella scored in
the fifth percentile in a test of language development, meaning that 95 percent of children
her age would be expected to outperform her on the test. Christian was at or above age
level in all areas of speech and language.
       Pretrial motions to add expert witnesses
       This case began on December 12, 2005, when the Zamora family—Mark,
Christina, and the twins (the Zamoras)—filed a complaint against Dr. Palitz and Doctors
Medical Center-Modesto, Inc., the hospital where Christina went to the emergency room
and later gave birth. The Zamoras alleged claims of medical malpractice and negligent
infliction of mental distress. In 2009, the trial court granted summary judgment for the
defendants with respect to Mark‟s claim, and we affirmed. (Zamora v. Palitz (Aug. 17,
2009, F056160) [nonpub. opn.].) Christina dismissed her claims in 2011 in exchange for
a waiver of costs, and the hospital reached a settlement with the plaintiffs prior to trial.
The trial proceeded on Anabella and Christian‟s claims against Dr. Palitz, and this appeal
relates to the twins‟ claims against the doctor only.
       The Zamoras‟ theory of the case was that Dr. Palitz committed medical
malpractice by failing to admit Christina to the hospital when she was at the emergency
room with contractions. They alleged that he should have “personally examined her or
turned her over to a competent specialist and institute[d] prophylactic measures to delay
and manage the onset of labor and otherwise taken necessary action to improve the
babies‟ chances and improve fetal outcome.” They claimed that Dr. Palitz‟s acts and
omissions caused injury to Anabella and Christian because “many of the complications




                                              5.
that occurred to the twins could have been prevented or minimized by proper responsive
care.”3
          By early 2007, the Zamoras were aware that the defendants disputed the claim that
their conduct caused injury to the twins. In February 2007, the Zamoras propounded
special interrogatories to the hospital asking if it contended that Christina had
experienced any infection before the birth of the twins that accounted for the early onset
of labor and delivery. The hospital responded, “The placental pathology report [by Dr.
Purvis], dated January 7, 2005, indicates that there was chorioamnionitis and funisitis.”
In May 2007, the Zamoras requested from the hospital “any and all pathological
specimens, slides, photographs or written reports pertaining to the labor and delivery” of
the twins. In July 2007, the hospital sent the Zamoras‟ counsel six re-cut placental slides.
          Three years after the complaint was filed, the parties exchanged expert witness
lists on December 8, 2008, the date set for the exchange. Dr. Palitz disclosed a list of 15
retained experts. Among the experts listed were two pathologists, including Harvey
Kliman. Dr. Kliman‟s address was at Yale University School of Medicine in the
Reproductive and Placental Research Unit of the Department of Obstetrics and
Gynecology. According to an attached attorney declaration, he was board certified in
anatomic and clinical pathology and would provide testimony “regarding the fetal
fibronectin test, causation and damages.” The hospital‟s expert witness list included the
same two pathologists. The Zamoras did not include a pathologist in their expert witness
list.
          Three and a half months after the parties exchanged expert witness lists, on
April 16, 2009, the Zamoras filed a motion seeking, (1) to limit the number of expert
witnesses designated by the defendants, and (2) to augment the Zamoras‟ expert witness


          3Thesequotes are taken from the Zamoras‟ verified response to the hospital‟s first
set of special interrogatories. This response was dated May 5, 2006.



                                               6.
list. The Zamoras sought to add a forensic pathologist, Marvin Pietruszka, to their expert
list. The motion did not describe Dr. Pietruszka‟s proposed testimony, but a supporting
declaration by the Zamoras‟ counsel stated that the doctor “will provide expert testimony
concerning the causation and damages issues related to the placental slides, the fetal
fibronectin test and, potentially other issues within his expertise.”
       The Zamoras cited Code of Civil Procedure section 2034.620 for the court‟s
authority to allow a party to augment his or her expert witness list after the time for
disclosing experts has passed.4 In their motion, the Zamoras argued that augmentation
would cause no prejudice to the defendants, but they did not attempt to explain why they
had failed to identify Dr. Pietruszka in a timely manner.
       The defendants opposed the motion. The hospital pointed out that the Zamoras‟
counsel had specifically requested pathology slides in 2007, and the only purpose of
requesting the slides would have been to have an expert pathologist review those slides.
The hospital argued that the Zamoras‟ counsel had been aware of the need for a
pathologist for more than a year before their tardy request to augment their witness list,
and they offered no explanation for their tardiness.
       In addition, the hospital opposed the Zamoras‟ request to limit the number of
expert witnesses. In defending its disclosure of “several experts related to issues of
causation,” the hospital asserted: “[T]he placental pathology in this case demonstrates
that CHRISTINA ZAMORA had an amniotic infection that had reached both babies
while still in utero.… [E]xperts in different specialties and subspecialties are required to
testify regarding the role of infection in this matter.”
       The trial court heard argument on the Zamora‟s motion on April 30, 2009. With
respect to the request for leave to augment the witness list, the Zamoras‟ counsel argued


       4Subsequent     statutory references are to the Code of Civil Procedure unless
otherwise specified.



                                               7.
that he failed to designate a pathologist as the result of mistake. He told the court:
“Maybe looking with 20/20 hindsight, I should have designated a forensic pathologist in
view of what I can now see is the defense raising the specter of this chorioamnionitis and
this infection from the placenta. [¶] And the 2034 augmentation procedures certainly
contemplate lawyers making mistakes.” The Zamoras‟ counsel explained why the
Zamoras needed an expert pathologist:

       “[I]t turns out, if you deny me this expert, I cannot meet a very critical
       defense issue which has to do with the chorioamnionitis found in the
       placenta. Because it turns out, looking at it 20/20 hindsight, it takes a
       forensic pathologist to confront it the way that now I can see in the papers
       that they are going to present the issue. [¶] … I wish I was more perfect,
       but I‟m human. And I‟m taking a look at this thing, and I said, whoops, I
       can now see where they‟re coming from. I need this expert.”
Dr. Palitz‟s counsel pointed out that the Zamoras‟ moving papers did not mention mistake
or excusable neglect, observing, “It‟s not until today that we hear this.”
       The trial court denied the motion. As to the Zamoras‟ request for leave to augment
the expert witness list, the court explained:

       “[T]he moving papers are just totally insufficient. I have to make findings
       under 2034.620(c) in order to grant that off of the moving papers. There is
       nothing, nothing, in the moving papers that have anything to do with the
       findings I would have to make, and, therefore, I cannot make them .…”
       Addressing the Zamoras‟ counsel, the court continued, “[Y]ou cannot make up for
that in oral argument.” The Zamoras‟ counsel asked for leave from the court to “cure
[his] mistakes with regard to the moving papers and the augmentation,” and the court
responded that it did not “rule on anything like that in advance.”
       Seven months after the court denied the Zamoras‟ request to augment their expert
witness list, on December 15, 2009, their counsel filed a motion for leave to designate an
additional expert witness. In the motion, the Zamoras asked to designate pathologist
Arturo Mendoza as an expert witness. The Zamoras‟ counsel indicated that Dr. Mendoza
would provide expert testimony concerning “the placental pathology, related laboratory


                                                8.
studies, and related issues, [and] causation.” The Zamoras had also asked for leave to add
an expert in the field of neuroradiology.
       In support of their motion, the Zamoras asserted that the deposition of Dr. Kliman
revealed “new issues not previously raised in this litigation .…” The Zamoras‟ counsel
took Dr. Kliman‟s deposition on September 9, 2009. Dr. Kliman testified that the twins‟
placenta had been mislabeled by hospital medical staff, and the placenta samples labeled
Twin A were actually from Christian, while the samples labeled Twin B were from
Anabella. The Zamoras asserted that Dr. Kliman “claims this [mislabeling] proves that
the damage[s] claimed by twin A were in fact pre-existing and inevitable.” The Zamoras
argued that they “could not reasonably have known that the defense expert would claim
that defendant hospital employees switched the placentas, and so would not reasonably
have designated an expert in the very select sub-specialty implicated by that change.”
They also argued that Dr. Kliman‟s testimony “impeach[es] the integrity and accuracy of
the medical records” relied upon by the Zamoras.
       The defendants opposed the motion. Dr. Palitz argued that the Zamoras‟ motion
was “a repeat of the first motion” that the trial court denied in April 2009 and the proper
way to raise the issue again would have been a motion for reconsideration. Dr. Palitz
further argued that it was irrelevant that the placentas were mislabeled because each twin
had the same infection. The Zamoras should have known about the infection because
they had the hospital‟s pathology report by Dr. Purvis, which showed that both placentas
had acute chorioamnionitis. Even if they had not hired a pathologist before the parties
exchanged expert witness lists, the Zamoras “would have been on alert as to the placenta
issue when defendant disclosed two expert witnesses who were pathologists.”
       Similarly, the hospital asserted that the misidentification of the placentas “did not
have significant bearing on the causation issues in this case.” It pointed out that the
Zamoras‟ expert, Dr. Maureen Sims, stated during her deposition that the issue of
misidentification was irrelevant to her opinions regarding causation.


                                             9.
       In their reply brief, the Zamoras argued that the defendants withheld their
contention that the placentas were mislabeled and that Dr. Kliman‟s testimony was a
surprise that required the court to grant them leave to augment. The Zamoras, however,
did not respond to the defendants‟ claim that, since both twins‟ placentas had infection,
the mislabeling was not relevant to the issues of causation and damages.
       The court heard argument on the motion on January 21, 2010. The hospital‟s
counsel pointed out that, after the initial exchange of expert witness lists on December 8,
2008, the Zamoras had the right as a matter of statute to augment their expert witness list.
Since the defendants‟ expert witness lists included a placental pathologist to address
causation, the Zamoras knew then that placental pathology was an issue in the case, but
they failed to add their own expert pathologist within 20 days.
       Dr. Palitz‟s counsel argued:

       “The issues surrounding the placental pathologist and infection have always
       been there. In fact, it‟s extremely disingenuous and unbelievable to think
       that [the Zamoras‟] counsel is surprised by anything that has to do with
       placental pathology, because [the Zamoras‟ counsel] indicated at the last
       hearing on their motion to augment that they had, in fact, retained a
       placental pathologist .… [¶] What they are doing is basically expert-
       shopping. At the last motion, they wanted to disclose … a certain placental
       pathologist. [¶] In this motion, they want to disclose a completely different
       placental pathologist. They have had years to look for placental
       pathologists.”
       Dr. Palitz‟s counsel also maintained that the mislabeling of the placentas was not
relevant to the case. She argued that, assuming they wanted their own expert placental
pathologist to determine whether the placentas were mislabeled, the Zamoras “have failed
to establish why that would even be beneficial to them. [¶] [T]heir causation expert has
already testified a few weeks ago that her opinion regarding causation has nothing to do
with whether the placentas were misidentified or not.”
       The Zamoras‟ counsel responded that he had detrimentally relied on the hospital‟s
records (including Dr. Purvis‟s pathology report), and the defendants “intentionally failed



                                            10.
to disclose … that they were going to disagree with their own pathologist .…” He called
the defendants‟ actions “the ultimate sandbag.”
       The trial court denied the Zamoras‟ request to add a pathologist as an expert
witness. The court‟s written ruling explained:

              “[The Zamoras] seek to add pathologist Arturo Mendoza, M.D. as an
       expert. The [Zamoras] contend that adding Dr. Mendoza is justified
       because the original pathology and report prepared by Robert Purvis, M.D.
       may have been switched. However, apparently the samples are of the twins
       though the names may be switched. (Court notes that [Zamoras‟] expert Dr.
       Sims testified that this switch does not really matter.)

               “On or about May 1, 2007, [the Zamoras‟] counsel served a demand
       for production covering „specimens, slides, photographs or written reports
       pertaining to the labor and delivery of the twins.‟ [¶] On July 15, 2007, six
       (6) re-cut placental slides were mailed to [the Zamoras‟] counsel.

               “On March 26, 2009, [the Zamoras‟] counsel asked defense counsel
       to stipulate to [the Zamoras] adding pathologist Dr. Marvin Pietruszka „to
       testify concerning the causation issues that we anticipate might be raised in
       relationship to the placental slides, the fetal fibronectin test and potentially
       other issues within his expertise.‟

              “[The Zamoras‟] counsel then made a motion to augment experts
       which was denied on April 30, 2009 for failure to give any reason for the
       lateness of the motion. The moving declaration failed to address CCP
       § 2034.620(c).

              “The issues of causation and infection have been in this case from
       the beginning.

              “This motion as to the new pathologist is, in reality, a disguised
       motion for reconsideration. As such the motion as to Dr. Mendoza, the
       pathologist is DENIED. [I]t is clear that going back to July of 2007 issues
       relating to the placenta which would require a review by a pathologist were
       known to counsel for the [Zamoras].”
       The court granted the part of the motion requesting leave to add a neuroradiologist
to the expert witness list, finding that the Zamoras had failed to name a neuroradiologist
earlier as a result of mistake, inadvertence, surprise, or excusable neglect.



                                              11.
       Trial
       A jury trial began on February 15, 2011. We summarize some of the expert
testimony presented by both sides.
       The Zamoras‟ expert perinatologist, Brian Koos, explained that the
chorioamnionitis diagnosed by Dr. Purvis was subclinical, meaning there were no
observed clinical symptoms of infection, such as maternal fever, rapid heart rate, a tender
uterus, or foul discharge from the cervix. There was no evidence of infection in the
amniotic fluid, which surrounds the fetus. Nor did the babies have symptoms of infection
immediately after they were delivered. Evidence of infection would include low blood
pressure, low heart rate, and low platelet count.
       Dr. Koos testified that a woman at risk of preterm labor should be given tocolytics
to try to quiet the uterus and prolong the pregnancy and corticosteroids to help enhance
the lung maturity of the fetus. He testified that the standard of care for a patient such as
Christina (when she presented at the emergency room with contractions) would have been
to keep her in the hospital for at least 12 hours to assess her response to the tocolytics and
to give the steroids time to work. In addition, a nurse or doctor should have conducted an
exam to determine whether there was any effacement of the cervix, that is, whether it had
started to thin out. During labor, effacement of the cervix precedes dilation. Determining
whether there is effacement requires palpating the cervix; a visual inspection would not
show whether the cervix had become thin.
       According to Dr. Koos, Dr. Palitz‟s instructions to the nurse to give Christina
nifedipine and then send her home after 30 minutes were “[t]otally inappropriate.” He
opined that if Christina had not been discharged from the hospital and had received
tocolytics and steroids, there would have been “a more likely chance of forestalling
delivery for … 24 to 48 hours,” which would have been sufficient time for the steroids to
have a therapeutic effect.




                                             12.
       Dr. Sims, the Zamoras‟ expert neonatologist, testified that the timely
administration of tocolytics and steroids would have improved the twins‟ outcome. She
explained that a full treatment of steroids is 48 hours prior to delivery, but partial
treatment, such as 12 hours, has been shown to be beneficial. Dr. Sims opined that if
Christina had received tocolytics and steroids, she likely would have gone 48 hours or
more before delivery. Her opinion was based on the circumstances that this was
Christina‟s first pregnancy, the cervix was closed, and there was no rupture of
membranes. Dr. Sims testified that pregnancy can be prolonged for 48 hours even when
it is later discovered there was subclinical chorioamnionitis. In this situation, there is
little likelihood that a baby will become infected.
       Dr. Sims believed that neither Anabella nor Christian was infected at birth, nor had
either twin suffered brain injury before birth. She attributed Anabella‟s poor outcome
(compared with Christian) to the perforated bowel and subsequent cardiac arrest she
suffered when she was seven days old. She testified that if Christina had been given
steroids, it was more probable that Anabella would not have suffered a perforated bowel.
Considering the hospital‟s pathology report, Dr. Sims believed the funisitis found in Twin
B‟s placenta was more consistent with Christian‟s condition at birth because he had a low
white blood cell count and a “rockier course” than Anabella immediately after birth. In
cross-examination, she agreed that Christina‟s labor was likely brought about by
chorioamnionitis caused by an infection ascending from the vagina.
       Dr. Kliman, the defense expert pathologist, specialized in the study of placentas.
He described the placenta as the root system for a fetus; it supplies oxygen and nutrients
to the fetus. Dr. Kliman reviewed the hospital‟s pathology report and obtained additional
placental slides from the hospital, which he examined himself. He testified that when he
reviewed the pathology report, the description of the placenta for Twin A did not match
the clinical history of Anabella and, similarly, the description of the placenta of Twin B
did not match the clinical history of Christian. Because Anabella and Christian have


                                              13.
different blood types (Anabella is blood group B and Christian is blood group O), Dr.
Kliman was able to identify which placenta corresponded with which twin by determining
the blood type of the blood cells in the placental slides. His testing showed that the
placenta labeled Twin A was from Christian and the placenta labeled Twin B was from
Anabella. He testified that his testing was “a hundred percent foolproof way” to identify
the placenta. He further stated: “So I‟m just [fixing] that mislabeling. That can
sometimes happen. It‟s not surprising. It happened in this case.”
       Dr. Kliman then discussed the placental slides he determined were from Anabella.
The membranes were completely filled with neutrophils—the white blood cells that fight
bacteria—and there was no tissue left. He opined that this was “a very severe infection
that has been around for many, many days.” The placental slides from Christian showed
many fewer neutrophils. Dr. Kliman explained that Anabella was born first, which meant
she was closer to the cervix, where the infection was coming from. He believed, as a
consequence, the infection was with her longer and was more severe. He testified:
“That‟s why Christian is doing better than [Anabella] because of the difference between
the degrees of infection and the timing and where they were just by chance located in the
uterus. One was closer to the cervix; one was farther away.”
       Dr. Kliman also observed syncytial knots in the placentas. He explained that in a
normal pregnancy, at about 35 weeks, the placenta starts to make these knots, which
release a hormone that causes the fetus to make steroids. These steroids, in turn, prepare
the fetus for delivery. In a premature delivery where there has been an infection for days,
the infection stimulates the placenta to make these syncytial knots early. He testified:
“Those syncytial knots are basically telling the fetus, we have to get out of here. There is
a problem. We can‟t stay in here any longer. Get ready for delivery.” Both twins‟
placentas had syncytial knots, but Anabella‟s were more marked than Christian‟s because
she had been infected for more days. Based on the spread of the neutrophils through the
placental tissues, Dr. Kliman believed that Christian had been infected for at least 72


                                            14.
hours and Anabella had been infected longer than that. He explained, “We can time how
long the infection has been there by how long it takes these neutrophils to get through the
tissue.” “It takes about 24 hours for those cells just to start; takes another 24 hours to get
in the middle; and another 24 … to get to the top [of the chorionic plate].”
       Dr. Kliman opined that nothing could have been done to stop Christina‟s preterm
labor because of the severity of the infection. Administering steroids would not have
made a difference because the “fetuses were maximally exposed to steroids” already from
the syncytial knots. Antibiotics would not have changed the outcome either. Finally, he
testified that if the fetuses had stayed in the uterus any longer, Anabella likely would have
died and Christian would have been damaged.
       Gilbert Martin, the defense expert neonatologist, testified that, in his opinion, if
Christina had been kept at the hospital instead of discharged and given a continuous
course of tocolytics, it would not have prolonged the pregnancy. His opinion was based
on the fact that Christina had subclinical chorioamnionitis, and tocolytics do not work
when there is chorioamnionitis. Dr. Martin also testified that steroids have no appreciable
effect if given for only 12 hours. So, if steroids had been given to Christina at 3:00 a.m.,
there would not have been enough time to have an appreciable effect on the babies. He
testified that, even if Christina had been given tocolytics, antibiotics, and steroids
continuously instead of being discharged from the hospital, the outcome would not have
been different.
       Defense expert Richard Sweet is a professor of obstetrics and gynecology with a
specialty in infectious diseases. He believed that Christina‟s subclinical infection caused
her to go into pre-term labor. He explained that the immune system‟s response to
infection (1) initiates a process that begins to soften the cervix and (2) stimulates the
production of a hormone called prostaglandins that causes the uterus to contract. Dr.
Sweet gave his opinion that the twins probably would have been born at the same time
even if Christina had received additional tocolytics. He also testified that a study has


                                              15.
shown that, where there is chorioamnionitis and funisitis, a full course of steroids has no
effect on the baby.
       The jury reached a verdict on March 22, 2011. It found that Dr. Palitz was
“negligent in the diagnosis or treatment of Christina Zamora,” but did not find that his
negligence was a substantial factor in causing harm to Anabella or Christian.
                                      DISCUSSION
       The only issue on appeal is whether the trial court abused its discretion in denying
appellants‟ second motion for leave to add a pathologist to their expert witness list. We
begin our discussion with a brief overview of the statutes governing expert witness
disclosure.
       Section 2034.260 provides, “All parties who have appeared in the action shall
exchange information concerning expert witnesses in writing on or before the date of
exchange specified in the demand.” (§ 2034.260, subd. (a).) The expert witness list must
include, among other things, the expert‟s qualifications and “[a] brief narrative statement
of the general substance of the testimony that the expert is expected to give.” (Id.,
subd. (c)(1) & (2).)
       Within 20 days after the exchange of expert witness lists, a party may supplement
his or her expert witness list with “any experts who will express an opinion on a subject to
be covered by an expert designated by an adverse party to the exchange .…” (§ 2034.280,
subd. (a).) Supplementing an expert witness list may occur because “the exchange
reveals that one party plans to call experts on subjects the opposing party assumed would
not require expert testimony.” (Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2012) ¶ 8:1686, p. 8J-18 (rev. # 1, 2010).) “In such
cases, the opposing party has the right to supplement its expert witness exchange by
adding experts to cover subjects on which the opposing party indicates it plans to offer
expert testimony, and on which it had not previously retained an expert to testify.” (Ibid.,
italics omitted.)


                                            16.
       After the time to supplement expert witness lists has passed, a party may ask for
leave from the court to augment or amend an expert witness list. (§ 2034.610.) Under
section 2034.620:

              “The court shall grant leave to augment or amend an expert witness
       list … only if all of the following conditions are satisfied:

             “(a) The court has taken into account the extent to which the
       opposing party has relied on the list of expert witnesses.

               “(b) The court has determined that any party opposing the motion
       will not be prejudiced in maintaining that party‟s action or defense on the
       merits.

              “(c) The court has determined either of the following:

                      “(1) The 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.

                      “(2) The 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) Sought leave to augment or amend promptly after
       deciding to call the expert witness or to offer the different or additional
       testimony.

                           “(B) Promptly 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.

               “(d) Leave to augment or amend 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, a continuance of the
       trial for a reasonable period of time, and the awarding of costs and litigation
       expenses to any party opposing the motion.”
       Here, appellants do not dispute that the date for exchanging expert witness lists in
this case was December 8, 2008. They did not list a pathologist at that time, nor did they


                                            17.
supplement their expert witness list in the next 20 days. Their motion filed on
December 15, 2009, was brought pursuant to sections 2034.610 and 2034.620.
       We review the court‟s decision denying their motion for an abuse of discretion.
“The decision [whether] to grant relief from the failure to designate an expert witness is
addressed to the sound discretion of the trial court and will not be disturbed on appeal
absent a showing of manifest abuse of that discretion.” (Dickison v. Howen (1990) 220
Cal.App.3d 1471, 1476 (Dickison).)
       In this case, appellants previously filed a motion to augment their expert witness
list to add a pathologist in April 2009. At that time, appellants sought to add Dr.
Pietruszka to provide testimony on “causation and damages issues related to the placental
slides .…” During oral argument, appellants‟ attorney acknowledged that he now
understood the need for a placental pathologist, stating, “I should have designated a
forensic pathologist in view of what I can now see is the defense raising the specter of
this chorioamnionitis and this infection from the placenta.” The court found appellants‟
motion “totally insufficient” because there was nothing in the moving papers addressing
the findings necessary to grant the motion. Appellants had failed to provide any evidence
of either “reasonable diligence” (§ 2034.620, subd. (c)(1)) or “mistake, inadvertence,
surprise, or excusable neglect” (id., subd. (c)(2)). Although appellants‟ counsel claimed
mistake during oral argument, an attorney‟s unsworn statement in court is not evidence.
(See Homes on Wheels v. City of Santa Barbara (2004) 119 Cal.App.4th 1173, 1179;
People v. Superior Court (Crook) (1978) 83 Cal.App.3d 335, 341.)
       Appellants did not attempt to cure their motion. For example, they did not
immediately refile the motion (or seek reconsideration), including competent evidence of
mistake, inadvertence, excusable neglect, or other circumstance that would permit
augmentation under section 2034.620, subdivision (c). Instead, they waited over six
months and then moved to augment their expert witness list to add a different pathologist.
They stated that Dr. Mendoza would provide testimony on “the placental pathology,


                                            18.
related laboratory studies, and related issues, causation,” a description similar to the
description of Dr. Pietruszka‟s proposed testimony. Appellants argued that they were
entitled to augment their expert list with a new pathologist because they could not have
reasonably known that the defense expert would claim the placentas had been switched.
       Dr. Palitz and the hospital both responded that the alleged surprise revealed at Dr.
Kliman‟s deposition—the mislabeling of the placentas—was not particularly relevant to
the case. The hospital further explained that Dr. Kliman‟s deposition testimony showed
that both placentas had severe chorioamnionitis and delivery could not have been delayed.
It argued, “It makes no difference which placenta was more severely infected. The fact
that there was a severe infection caused the delivery.” Dr. Palitz argued that the motion
was simply a disguised motion for reconsideration of the appellants‟ earlier motion
seeking to add an expert pathologist.
       Appellants did not attempt to explain the relevance of the mislabeling of the
placentas, either in their reply brief or during oral argument. Nor did they address the
defendants‟ claim that their motion was the same as their earlier motion for leave to
augment their expert witness list.
       Viewed in light of this procedural history, we cannot say the trial court abused its
discretion by denying appellants‟ motion. The court observed that the issues of causation
and infection had been in the case from the beginning. It explained, “[G]oing back to
July of 2007[,] issues relating to the placenta which would require a review by a
pathologist were known to counsel for the [Zamoras].” Thus, the court implicitly found
that appellants had failed to meet the requirements of section 2034.620,
subdivision (c)(1); that is, appellants failed to show they “would not in the exercise of
reasonable diligence have determined to call that expert witness .…” Given the issues
raised by the defendants (and Dr. Purvis‟s pathology report itself), a reasonably diligent
litigant would have consulted with pathologists and identified an expert witness to
address the placental slides in a timely manner.


                                             19.
       Appellants contend that the trial court erred by treating the motion as a disguised
motion for reconsideration under section 1008. We agree with Dr. Palitz, however, that
the court‟s reference to a disguised motion for reconsideration does not imply that the
court applied the procedural requirements of section 1008 to deny their motion. Rather,
we understand the court‟s reference to the earlier motion as part of its basis for rejecting
appellants‟ claim of surprise. Given the similarity between Dr. Mendoza‟s proposed
testimony and the earlier proposed testimony of Dr. Pietruszka, it was evident to the court
that appellants were using the mislabeling of the placentas as a reason to add an expert
pathologist to testify on infection issues appellants had been aware of for months, if not
years. Because we are not persuaded by appellants‟ claim that the court treated their
motion as a motion for reconsideration under section 1008, we also reject their claim that
the court failed to apply the relevant legal criteria.
       Appellants‟ remaining contentions are not persuasive. They argue they were
entitled to rely on the accuracy of the hospital‟s pathology report and cite Evidence Code
section 1271, the business-record exception to the hearsay rule. This evidentiary rule
shows only that Dr. Purvis‟s pathology report may have been admissible evidence. It
does not support the appellants‟ claim that it was necessarily reasonable for them to rely
on the pathology report‟s veracity.5 Nor does the business-record exception to the
hearsay rule suggest that the defendants somehow had an obligation to give notice to the
Zamoras of their intention to present evidence that contradicted the pathology report in
one respect.



       5People  v. Utter (1972) 24 Cal.App.3d 535, 553, overruled on other grounds by
People v. Morante (1999) 20 Cal.4th 403, 432, footnote 16, cited by appellants, stands
only for the proposition that hospital records are admissible evidence. In this case, no
party objected to admitting Dr. Purvis‟s pathology report into evidence. Taylor v.
Centennial Bowl, Inc. (1966) 65 Cal.2d 114, cited by appellants, is completely inapposite;
it does not deal with medical records at all.



                                               20.
       Appellants also contend that a change of testimony by a witness constitutes
surprise that warrants leave to amend an expert witness list. In this case, however, there
is no claim that any witness changed his testimony. Appellants do not contend, for
example, that Dr. Purvis‟s testimony at trial was different from his testimony in his
deposition. The cases cited by appellants are not pertinent to this appeal. In Whitfield v.
Debrincat (1937) 18 Cal.App.2d 730, 732-734, the trial court granted the defendant in a
personal injury action a new trial based on surprise, where the defendant‟s own witness
averred in support of the new trial motion that he had been confused at trial and had
intended to testify differently. The appellate court held that it could not say that the lower
court had abused its discretion in granting a new trial under those circumstances. (Id. at
p. 734.) In Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723, the court held that a
party that has designated an expert on a particular subject could not use a supplemental
expert list to substitute a new expert on the same subject. In Andersen v. Howland (1970)
3 Cal.App.3d 380, 382-383, the prevailing plaintiff in a personal injury action moved for
a new trial based on newly discovered evidence of additional injuries. The trial court
found the plaintiff had exercised due diligence. The appellate court concluded that the
trial court did not abuse its discretion, but noted that a finding of lack of due diligence
may not have been an abuse of discretion either. (Id. at pp. 383-384.) In Vise v. Rossi
(1957) 150 Cal.App.2d 224, 225-226, the defendant in a personal injury action filed a
motion for a new trial based on an affidavit from his own medical witness that he had
examined the plaintiff‟s x-rays after the trial and determined her injuries were not as
extensive as he previously believed. The trial court denied the motion. The appellate
court did not review the order denying a new trial but observed that the lack of diligence
may have justified the denial. (Id. at p. 227.) These cases simply are of no help to
appellants.
       Dickison, supra, 220 Cal.App.3d 1471, cited by appellants also is not on point. In
Dickison, a medical malpractice case, the trial court allowed the defendant, Dr. Howen, to


                                              21.
augment his expert witness list after his own expert, Dr. Smith, testified in deposition that
Dr. Howen breached the standard of care. (Id. at p. 1475.) In support of the motion to
augment, Dr. Howen‟s attorney stated that he had met twice with Dr. Smith before the
deposition and both times he had given his opinion that Dr. Howen‟s care was within the
standard of care; the attorney also told the court he was shocked by Dr. Smith‟s
deposition testimony. (Id. at pp. 1476-1477.) After a defense verdict, the plaintiff
appealed, arguing that the trial court abused its discretion by granting Dr. Howen‟s
motion to augment. (Id. at p. 1476.) The appellate court found “no abuse of discretion in
the trial court‟s determination that the change in Dr. Smith‟s testimony was a surprise
which Dr. Howen could not have prevented.” (Id. at p. 1478.) The Dickison court
observed that the trial court believed Dr. Howen‟s attorney, and “we [the appellate court]
will not question it.” (Ibid.)
       Unlike Dickison, appellants were not surprised by one of their own witnesses‟
deposition testimony. Instead, they claim they were surprised by Dr. Kliman‟s deposition
testimony. They offer no authority for their position that a party should be allowed to
augment his or her expert witness list based on surprise about the opinions of an opposing
party’s expert witness.
       In any event, appellants have failed to demonstrate prejudice. Appellants contend
that the mislabeling of the placentas was central to the defense case. They assert: “The
[jury] verdict rests on the theory of a catastrophic but undetected infection that would
have contra-indicated delaying delivery by tocolytics, and which made it impossible to
delay delivery .… That theory depended entirely on undermining [the hospital‟s]
pathology reports with Dr. Kliman‟s arcane and undocumented immunohistochemistry
methods, and on impeaching the entire clinical record—which showed only mild to
moderate chorioamnionitis in both twins, more severe infection in Christian, and none of
the common symptoms of maternal infection.”




                                             22.
       As Dr. Palitz points out, however, the original hospital pathology report
documented the presence of marked acute chorioamnionitis in one placenta, noting
infiltration of neutrophils, necrosis in the fetal membranes, the presence of syncytial
knots, and funisitis. In the other placenta, Dr. Purvis documented moderate acute
chorioamnionitis with moderate infiltrate of neutrophils and the presence of syncytial
knots. Dr. Purvis did not use the word “mild” in describing the infection of either
placenta. Although Dr. Kliman determined that the placental samples had been
mislabeled, he testified in his deposition that his own findings were generally consistent
with Dr. Purvis‟s qualitative findings.
       We agree with appellants that the jury‟s finding of no causation rested on the
defense theory that tocolytics and steroids would not have prolonged the pregnancy or
improved the outcome for the twins. We are not persuaded, however, by their claim that
this theory hinged on the mislabeling of placentas. According to the defense experts, it
was the severity of the infection—not which fetus had the more severe infection—that
caused the preterm delivery. Appellants do not point to any expert testimony indicating
that the same levels of infection would have led to a different outcome if Christian rather
than Anabella had been more severely affected.
       Further, appellants have not established what their proposed expert would have
said that would have undermined Dr. Kliman‟s blood-type-testing methods. In their
motion, appellants wanted to add Dr. Mendoza as an expert witness allegedly to address
the “very select sub-specialty implicated” by Dr. Kliman‟s finding that the placentas had
been mislabeled. They did not, however, describe Dr. Mendoza‟s proposed testimony in
sufficient detail to demonstrate to the trial court how he would address the mislabeling of
the placentas as opposed to the general issue of infection in both placentas. Even on
appeal they do not claim they have an expert who will dispute Dr. Kliman‟s determination
of blood types. Appellants only claim that the prejudice flowing from the denial of their
motion for leave to add an expert pathologist is “manifest from the record.” Appellants‟


                                             23.
argument that they were prejudiced by the court‟s ruling is based on the importance of Dr.
Kliman‟s testimony to the defense because he testified on the severity of the infection in
the fetal tissues. We observe, however, that appellants are appealing the denial of their
motion for leave to add an expert, not to exclude the testimony of Dr. Kliman.
       Our state Constitution provides that “[n]o judgment shall be set aside, or new trial
granted, in any cause, ... for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI,
§ 13.) “The burden is on the appellant in every case to show that the claimed error is
prejudicial; i.e., that it has resulted in a miscarriage of justice.” (Cucinella v. Weston
Biscuit Co. (1954) 42 Cal.2d 71, 82.) “Because of the need to consider the particulars of
the given case, rather than the type of error, the appellant bears the duty of spelling out in
his brief exactly how the error caused a miscarriage of justice.” (Paterno v. State of
California (1999) 74 Cal.App.4th 68, 106.) In this case, appellants have not met their
burden of establishing a miscarriage of justice.
                                       DISPOSITION
       The judgment is affirmed. Costs are awarded to respondents.


                                                                   _____________________
                                                                       Wiseman, Acting P.J.

WE CONCUR:


 _____________________
 Kane, J.


 _____________________
 Peña, J.




                                              24.
