Filed 11/13/14 Skamangas v. Lai CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


ALISON SKAMANGAS,
         Plaintiff and Appellant,
                                                                     A133536
v.
DONALD LAI,                                                          (Alameda County
                                                                     Super. Ct. No. VG09438029)
         Defendant and Respondent.



         Alison Skamangas brought this medical malpractice action against Donald Lai,
M.D., for the care he provided to her husband, Peter, after Peter suffered a heart attack.1
The jury rendered a verdict in favor of Dr. Lai. On appeal, Alison argues that the
judgment must be reversed because the trial transcript is inadequate, the verdict is
supported by insufficient evidence, Dr. Lai’s counsel engaged in trial misconduct,
evidence of Peter’s stock options was improperly introduced into evidence, and time
limits on introducing evidence and presenting closing arguments were improperly set.
We are not persuaded by these arguments and affirm.




1
 Because Alison and Peter share the same surname, we shall refer to them by their first
names for the sake of clarity and readability. We intend no disrespect in doing so.


                                                             1
                                           I.
                                       BACKGROUND
       Peter suffered a type of heart attack known as a right ventricular infarction (RVI),
and he died after being treated by Dr. Lai at ValleyCare Medical Center. After his death,
Alison brought this action for medical malpractice.
       Alison’s case against Dr. Lai was tried before a jury, and several proceedings and
rulings occurred during the trial that are relevant to the issues raised on appeal. First,
competing expert testimony was presented on whether Dr. Lai’s care for Peter was
negligent. Richard Terry, M.D., testified on behalf of Dr. Lai, while Jay Schapira, M.D.,
and James Leo, M.D., testified on behalf of Alison. Second, counsel for Dr. Lai made
comments and posed questions during the trial that Alison contends were inappropriate.
Third, evidence was introduced in connection with Alison’s alleged damages about
Peter’s vested and nonvested stock options. And, finally, the trial court discussed the
timing of closing arguments and deliberations with the jury after the close of the
evidence.
       The jury found in favor of Dr. Lai.
                                              II.
                                         DISCUSSION
       A.     Prior Orders Establish the Adequacy of the Trial Transcript.
       Alison preliminarily argues that the trial transcript is incomplete and inaccurate.
We have previously considered and rejected three motions by her for relief based on
transcript inadequacies, and we decline to rule otherwise now.
       Alison’s first motion challenging the adequacy of the transcript was filed in
December 2012, and it asked us to vacate the judgment. We denied the motion in March
2013, but we remanded the matter to the trial court to resolve any issues with the
transcript. We received a supplemental transcript in December 2013. A month later, in
January 2014, Alison filed a renewed motion to vacate the judgment, again arguing the
transcript was inadequate. We denied the motion, holding that Alison failed to show she
was entitled to relief under the relevant statute, Code of Civil Procedure section 914.



                                              2
Alison then filed a motion for reconsideration or for an order requiring the reporter to
appear at a hearing. We denied this motion as well.
       In her briefs, Alison argues for the fourth time that she is entitled to relief because
of transcript inadequacies. We conclude that the issue has been settled and that Alison’s
argument remains unmeritorious.
       We may vacate a judgment in the event “of the loss or destruction, in whole or in
substantial part, of the notes of [the trial] reporter.” (Code Civ. Proc., § 914.)
Here, the trial transcript is over 1,600 pages, and there is no indication a substantial part
of it is missing. Rather, Alison vaguely references a number of minor typographical
errors and contends that the transcript is inconsistent with her personal recollection. This
is insufficient to establish the loss or destruction of a substantial part of the transcript.
Moreover, as we explain below, we would sustain the judgment even if we were to
assume that Alison’s recollections of the lower court proceedings are true and accurate.
       B.      Substantial Evidence Supports the Jury’s Verdict.
       Alison asserts that the jury’s verdict was contrary to the overwhelming weight of
the evidence. She contends that Dr. Lai was negligent in treating Peter because he
(1) administered nitroglycerin to Peter after failing to properly diagnose him with an RVI,
(2) failed to intubate Peter during a code blue,2 and (3) failed to perform thrombo-
aspiration before deploying stents and balloons to open Peter’s arteries.
       In reviewing these contentions, we apply the substantial-evidence rule. (In re
Ryan D. (2002) 100 Cal.App.4th 854, 859.) In doing so, we “ ‘must view the whole
record in a light most favorable to the judgment, resolving all evidentiary conflicts and
drawing all reasonable inferences in favor of the decision of the trial court.’ ”
(DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) “ ‘We may not substitute
our view of the correct findings for those of the [jury]; rather, we must accept any
reasonable interpretation of the evidence which supports the [jury]’s decision.’ ” (Ibid.)
Substantial evidence is “evidence of ponderable legal significance, evidence that is
2
 The term “code blue” is generally used to indicate that a patient requires resuscitation or
otherwise needs immediate medical attention.


                                                3
reasonable, credible and of solid value.” (Roddenberry v. Roddenberry (1996)
44 Cal.App.4th 634, 651.) Where, as here, the party with the burden of proof at trial
appeals the verdict on the ground there was insufficient evidence, “the question becomes
whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528,
quoting Roesch v. De Mota (1944) 24 Cal.2d 563, 571.)
       Applying these standards, we conclude that substantial evidence supports the
jury’s verdict. In support of Alison’s first contention—that Dr. Lai negligently
administered nitroglycerin to Peter—Dr. Schapira testified that nitroglycerin is
contraindicated for an RVI because it lowers blood pressure. But he was not the only
expert to testify on the issue. Dr. Lai’s expert, Dr. Terry, opined that Dr. Lai met or
exceeded the applicable standards of care. He believed that Dr. Lai’s treatment approach
should have been the same even if Peter had an RVI. According to Dr. Terry, the
treatment goal in a case such as Peter’s is to open the occluded artery as soon as possible,
and Dr. Lai properly did what he could to do so.
       Dr. Schapira testified that nitroglycerin is contraindicated for RVIs since this form
of a heart attack can reduce the patient’s blood pressure, i.e., make the patient
hypotensive. But it was reasonable for the jury to conclude that the drug was not
contraindicated in Peter’s case. Dr. Lai testified that nitroglycerin can be given to a
patient, even one who suffered an RVI, so long as the patient has adequate blood
pressure.3 Dr. Terry testified that it was “certainly appropriate” for Dr. Lai to administer
nitroglycerin because Peter had high blood pressure during the relevant period. And

3
  At trial, Alison’s counsel asked Dr. Lai whether nitroglycerin is contraindicated for an
RVI. Dr. Lai’s counsel objected on the ground that the question called for expert
opinion, and the trial court sustained the objection. Alison now argues that the ruling was
in error. We conclude that even if the ruling was erroneous, it was not prejudicial since
Dr. Lai had already answered the question by testifying that nitroglycerin was
contraindicated for an RVI only if the patient had low blood pressure. Moreover, Alison
had and exercised ample opportunity to present contrary evidence.


                                              4
Howard Yoshioka, M.D., a physician who evaluated Peter in the emergency room,
testified that whether nitroglycerin is contraindicated for treatment of an RVI “depends
completely on the patient’s scenario.” 4
       At trial, the experts disagreed whether Peter’s blood pressure was accurately
measured and when Peter became hypotensive. Dr. Schapira testified that Dr. Lai should
have used an intra-aortic blood pressure device since it would have shown Peter’s low
blood pressure, while Dr. Terry testified that Dr. Lai properly used an external blood
pressure cuff. Dr. Terry testified that Peter had high blood pressure when he was
admitted to the hospital and continued to have high blood pressure until Dr. Lai opened
up his coronary artery, at which point Dr. Lai stopped the nitroglycerin. Viewing the
totality of this evidence in the light most favorable to the judgment, we conclude that the
jury could have reasonably found Dr. Lai’s use of nitroglycerin to have been consistent
with the standard of care.
       Alison’s second contention is that Dr. Lai negligently failed to intubate Peter when
he lost consciousness and suffered seizure-like activity. The emergency physician on
duty called a code blue so Peter could be intubated. But when Peter regained
consciousness, Dr. Lai cancelled the code. Dr. Leo, another one of Alison’s experts,
testified that the failure to intubate Peter significantly contributed to his death because it
allowed him to aspirate vomit, which in turn resulted in aspiration pneumonia, lung
damage, sepsis, septic shock, and multiple organ failure. But at trial, Dr. Terry testified
that there were valid reasons not to intubate Peter at the time of the code blue. He opined
that intubating Peter would have placed increased stress on his heart, created its own risk

4
  Alison also argues that the U.S. Food and Drug Administration (FDA) has cautioned
that certain drugs administered to her husband can cause low blood pressure and
hypotension. She asserts that she introduced extensive evidence concerning the FDA
warnings at trial, but the court reporter failed to transcribe them. It appears that Alison is
mistaken about the introduction of this evidence. As Dr. Lai pointed out in his opposition
to Alison’s renewed motion to vacate the judgment, the FDA evidence was related to
Alison’s claims against the hospital. These claims were dismissed prior to trial. In any
event, even if this evidence had been introduced, there does not appear to be any dispute
that Peter was administered medications that can reduce blood pressure.


                                               5
of inducing vomiting, and presented other difficulties because Peter was conscious.5 It
was not unreasonable for the jury to side with Dr. Terry even though Alison offered two
contrary expert opinions. Moreover, Alison places too much weight on hindsight.
Although intubation might have prevented Peter from contracting aspiration pneumonia,
it is far from clear that aspiration pneumonia was or should have been Dr. Lai’s primary
concern at the time of the code blue.
       Alison’s third contention is that Dr. Lai negligently waited to use a procedure
known as thrombo-aspiration until after he deployed stents and balloons to open Peter’s
arteries. Dr. Schapira explained that thrombo-aspiration is a procedure whereby a Pronto
catheter is used to create a vacuum that sucks out blood clots. He testified that the
procedure should be done first because it permits the doctor to pull out “large chunks of
clot” before placing the stents. Dr. Schapira testified that Dr. Lai’s deployment of stents
and balloons before using the Pronto catheter caused downstream embolization and
blockage of collateral blood vessels.
       But again, conflicting evidence was presented. Dr. Terry testified that the
circumstances at the time prevented Dr. Lai from being able to remove the clot without
first deploying stents and balloons. He explained that Dr. Lai had been unable to thread a
middle-weight wire through the obstruction in Peter’s artery, and this meant it was
unlikely Dr. Lai would have been able to get a larger catheter past the obstruction without
pushing the clot downstream.
       Although the expert testimony presented by Alison might be credible and
reasonable, our inquiry is whether that testimony was uncontradicted or left no room for a




5
 Alison argues that Dr. Terry’s statements were not credible because of inconsistencies
between his trial and deposition testimonies and because he had reviewed the records of
only five or six related cases. But on substantial evidence review, credibility
determinations are the “exclusive province” of the jury. (Daly v. Wallace (1965)
234 Cal.App.2d 689, 692, italics omitted.)


                                             6
contrary finding. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) It was neither.6
Accordingly, we conclude that substantial evidence supports the verdict.
       C.     Dr. Lai’s Counsel Did Not Engage in Misconduct.
       Alison argues that Dr. Lai’s counsel engaged in prejudicial misconduct in several
ways. First, she contends that counsel implied there were problems in her marriage by
introducing evidence and argument that she once told Peter, “[Y]ou can just move in over
there [his office], because you work there all the time.” Second, she contends that
counsel improperly questioned her about her activities after Peter’s death. Third, she
contends that counsel improperly inflamed “social and economic prejudices of the jury”
by cross-examining Dr. Schapira about his curriculum vitae, his publications, other
parties for whom he had testified, the location of his practice in Beverly Hills, his
income, the income of his hospital, and its reputation as the “hospital to the stars.” She
also argues that counsel improperly cross-examined Dr. Schapira about mistakes or
inconsistencies in a declaration he had submitted on summary judgment. Finally, she
contends that counsel reiterated many of these improper comments in his closing
statements.
       These arguments were waived because Alison’s trial counsel did not object to
these comments or questions at trial. (See Evid. Code, § 353, subd. (a).) Furthermore,
even if the arguments had been preserved, we would reject them because the comments
and questions were proper, their probative value outweighed any danger of undue



6
  Alison also argues that the jury must have failed to properly consider all of the evidence
because it returned a verdict in under two hours and did not request to review any of the
trial exhibits. But uncorroborated speculation concerning the jurors’ mental processes is
insufficient to impugn the validity of the verdict. (Cf. Evid. Code § 1150 [“Upon an
inquiry as to the validity of a verdict, . . . [n]o evidence is admissible to show the effect of
[a] statement, conduct, condition, or event upon a juror either in influencing him to assent
to or dissent from the verdict or concerning the mental processes by which it was
determined”]; People v. Hutchinson (1969) 71 Cal.2d 342, 350 [“The only improper
influences that may be proved under section 1150 to impeach a verdict . . . are those open
to sight, hearing, and the other senses and thus subject to corroboration”].)


                                               7
prejudice (see Evid. Code, § 352), and it is unlikely the jury’s verdict was affected by
them. (See Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).)
       Counsel’s comment about Peter’s work at his office, when viewed in context, was
offered as background information about Peter’s health. Counsel’s cross-examination of
Alison about her activities following Peter’s death was not improper since Alison’s own
counsel had questioned her about similar activities on direct examination. And
Dr. Schapira’s qualifications, biases, and credibility were fair game on cross examination,
as were any inconsistencies between his trial testimony and his earlier declaration.
Finally, Dr. Lai’s closing statements do not appear in the reporter’s transcript so it is not
apparent whether the comments and questions were reiterated in closing argument. But,
as we have discussed, there was nothing improper about the comments and questions, and
Alison cannot remember the substance of any additional allegedly improper comments.
We decline to reverse based solely on a vague assertion that defense counsel’s closing
argument was improper, especially since counsel’s closing argument was not mentioned
in Alison’s designation of the record or renewed motion to vacate the judgment.7
       D.     The Trial Court Properly Allowed Evidence Concerning Stock Options.
       Alison argues that the trial court erred by allowing the introduction of evidence
concerning Peter’s stock options. We disagree.
       Before trial, Alison filed a motion in limine to bar evidence and argument related
to certain stock options. The trial court excluded evidence of options that vested prior to
Peter’s death and that had been exercised by Alison because these options would not have
affected any damages suffered by Alison resulting from Peter’s death.

7
  Alison’s reliance on People v. Apalatequi (1978) 82 Cal.App.3d 970 is unavailing. In
that case, the court vacated a guilty verdict where the defendant asserted there was
prosecutorial misconduct during closing statements, and the court reporter lost her notes
of those statements. (Id. at pp. 971-972, 974.) Even if we assume that this standard
applies in civil cases, the facts are distinguishable. In Apalatequi, defense counsel
recalled with specificity the misconduct and the objections made to it, and the court
expressed its inclination to find prosecutorial misconduct if the statement was true. (Id.
at pp. 973-974.) Here, the only alleged misconduct that Alison can recall was not
objected to and does not raise grounds for reversal.


                                              8
       At trial, Alison called Patrick Mason, Ph.D., a forensic economist, to testify
regarding her damages. Dr. Mason included in his damage calculations the value of
10,000 stock options that Alison purportedly lost because of Peter’s death. Dr. Lai called
his own economist, Jerald Udinsky, Ph.D., to rebut Dr. Mason’s testimony. Dr. Udinsky
testified that Dr. Mason’s calculations were incorrect, because 2,500 of the 10,000 stock
options vested before Peter’s death.
       Alison argues that Dr. Udinsky’s testimony violated the trial court’s order on the
motion in limine and that the testimony was somehow prejudicial because it revealed that
she is wealthy. She also asserts that the court reporter failed to record her objections to
this testimony. Regardless whether Alison waived the argument by failing to object
below, her argument lacks merit. Evidence undermining Dr. Mason’s damage
calculations was relevant, and there was little risk it would unduly prejudice Alison,
especially since her own expert, Dr. Mason, had already introduced evidence concerning
Peter’s income and earnings. (See Evid. Code, § 352.) And it is not reasonably probable
the jury would have reached a different verdict on liability if Dr. Mason’s testimony on
damages had been excluded. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
       E.     The Trial Court Did Not Impose Improper Time Limits.
       Finally, Alison argues that the court erred by placing limits on the number of trial
days and the time for closing arguments. Alison cites to only two specific instances in
the record: (1) the trial court’s discussion of scheduling issues with the jurors after the
close of evidence, and (2) a statement by the trial court that the jurors should eat lunch
before closing arguments because the court “wanted to get this finished.” Alison claims
that the reporter failed to transcribe other instances where the trial court made comments
to the jurors about when their service would be complete.
       But these claims establish neither error nor prejudice. The trial court had the
discretion to set such time limits (see California Crane School, Inc. v. National Com. for
Certification of Crane Operators (2014) 226 Cal.App.4th 12, 20-24; Ackerman v. Griggs
(1930) 109 Cal.App. 365, 369), and there is no indication the trial court abused its
discretion. Alison fails to explain with specificity why any of the alleged limits was


                                              9
wrong, and she identifies no evidence or arguments she was precluded from presenting
on account of the limits. She concedes that the trial lasted several weeks, and the record
reflects that her trial counsel finished his closing arguments within the time limits set by
the court.
                                             III.
                                        DISPOSITION
       The judgment is affirmed.




                                             10
                                 _________________________
                                 Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Banke, J.




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