Filed 8/14/14 Slothower v. No. California Inalliance CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----

J. SCOTT SLOTHOWER et al.,                                                                   C067330

                   Plaintiffs and Respondents,                                       (Super. Ct. No.
                                                                               34200800013235CUPOGDS)
         v.

NORTHERN CALIFORNIA INALLIANCE et al.,

                   Defendants and Appellants.



         Ryan Slothower, a developmentally disabled young man, lived in his own home
with the help of caregivers. One of these caregivers, defendant Robert Staples, was
employed by defendant Northern California Inalliance (Inalliance). During a struggle in
June 2007 Staples broke Ryan’s leg. Ryan died following surgery at Kaiser Foundation
Hospital (Kaiser Hospital).
         Ryan’s parents, plaintiffs Scott and Laure Slothower, brought suit against Staples
and Inalliance for wrongful death. A jury found Staples negligent and awarded the
Slothowers $1.2 million in noneconomic damages. Inalliance appeals, arguing the court
erred in instructing on causation, expert testimony failed to establish the necessary
standard of care, the court erred in not setting off plaintiffs’ settlement with Kaiser



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Hospital and in not allowing evidence of the settlement, and expert witness fees should
have been recoverable. We shall affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In 2008 the Slothowers, Ryan’s parents, filed suit against Inalliance and Staples
for wrongful death. Inalliance and Staples cross-complained against Kaiser Hospital and
several of its employees for indemnity and contribution.
       The Kaiser Hospital cross-defendants settled with the Slothowers for $30,000 plus
an assignment to the Slothowers of Kaiser Hospital’s medical lien of $145,000. The
Kaiser Hospital cross-defendants filed a motion requesting the court approve the
settlement agreement under Code of Civil Procedure section 877.6. The court granted the
motion. Before trial, the Slothowers made Code of Civil Procedure section 998 offers to
compromise to Inalliance and Staples. The offers were not accepted.
       A jury trial followed. The Slothowers filed a pretrial motion to exclude references
to the settlement reached with Kaiser Hospital. The court granted the motion. The
following evidence was introduced at trial.
       Ryan Slothower
       At the time of the incident, Ryan was a 27-year-old man with severe
developmental disabilities and mental retardation. He lived in a home owned by his
parents. Ryan stood five feet three inches tall and weighed just over 100 pounds.
       Ryan had certain likes and dislikes. He loved working with paper. Ryan became
agitated if he got too hot and would indicate his discomfort by taking off his shirt.
Ryan’s family and support staff kept the air conditioner on most of the time.
       At times Ryan would act out. Some disabled people communicate through
behavior, since verbal communication may not be possible. Ryan’s mother was able to
calm him down when he became agitated. Inalliance caregivers generally found it easy
to talk to Ryan and calm him down. When Ryan acted out and threatened to injure
himself, support staff used soothing words and a gentle touch to calm him down.

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       Support for Disabled People
       The Lanterman Developmental Disabilities Services Act was enacted to ensure
needed services to the developmentally disabled. (Welf. & Inst. Code, § 4500 et seq.)
The act focuses on integrating the disabled into society and helping them become self-
sufficient. (Welf. & Inst. Code, § 4501.)
       The Alta California Regional Center is a community agency overseen by the
California Department of Developmental Services. The center coordinates support
services for the disabled in the Sacramento area through a network of service providers.
These providers, also known as vendors, provide support services directly to the disabled.
       Southside Art Center
       One of the vendors serving Ryan was Southside Art Center (Southside), which
provides vocational opportunities. Southside trains its staff in both behavioral and
humanistic approaches to working with the disabled. A behavioral approach involves
managing difficult behaviors; the humanistic approach involves treating the reasons for
and causes of the behaviors. Under the humanistic philosophy, a person acts out when
his or her needs are not being met.
       In order to avoid physical approaches to behavioral problems, Southside trains its
staff not to do anything that would escalate difficult behavior. Southside develops
behavioral plans for its clients. Southside employees are trained that the plan has failed if
staff physically restrains a client, since staff should never have to touch anybody. Staples
was trained at Southside.
       Inalliance
       Inalliance is a private, nonprofit agency providing services to the disabled.
Inalliance’s program is designed to promote self-sufficiency and independence.
       Inalliance’s employee orientation manual, provided to in-home staff, states that
consumers have the right to make decisions concerning the quality of their lives. The
manual outlines a no-restraint policy for its clients.

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       The agency provided in-home support services for Ryan. During the week, Ryan
attended the program at Southside about seven hours a day. When he returned home,
Inalliance caregivers cared for him until the next morning. Inalliance also provided care
on the weekends.
       Ryan’s IPP
       Alta California Regional Center developed an individual program plan (IPP) for
Ryan, outlining services and goals. Each vendor serving Ryan tailored a plan.
       Southside, Inalliance, and Ryan’s family developed an IPP tailored to Ryan’s
personality and designed to outline the support he needed. The plan called for staff to be
strong and calm. Ryan would become frustrated if staff were not patient with his speech
issues. Under the plan, staff should not take things away from Ryan as a consequence of
his behavior, and should not say “no” directly or Ryan would tune out.
       Robert Staples
       Staples worked at Southside from 1999 until 2004 or 2005, when he began
working for Inalliance. In the summer of 2006 he began providing support for Ryan two
weekends a month.
       At Inalliance, Staples was aware of the no-restraint policy. During his training,
Staples was told never to physically manage any client. Instead, staff were trained to de-
escalate difficult behaviors and avoid touching clients. Should physical restraint become
necessary, the size of the person to be restrained must be taken into account to minimize
the risk of injury. Staples weighed 225 to 230 pounds.
       The Incident
       The only witness to the incident, Staples testified that on that afternoon, Ryan
became agitated while talking to his sister on the phone. Ryan said he wanted paper.
After Ryan hung up he tried to make another call, but Staples took the phone away.
Staples said they could go get paper, but Ryan had to stop crying first. Ryan became
more agitated and began to act out.

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       Ryan went into his room and continued to cry and ask for his mother. Staples
stood outside the room; he did not consider calling Ryan’s mother. Staples knew Ryan’s
mother was amenable to being called for help with Ryan and that she was always able to
calm him down.
       Staples then heard a bang in Ryan’s room, and when he entered he saw Ryan
sitting in a chair and picking at a hole in the wall. In order to get Ryan to stop, Staples
threatened to take Ryan’s wallet away. This technique was often effective.
       Ryan kicked at Staples. In response, Staples determined he needed to “physically
manage” Ryan. Staples was not in danger from Ryan’s actions, and he did not move out
of the way. Staples grabbed Ryan’s right leg, and Ryan kicked at him with his left leg
and slid out of the chair. Staples let go of Ryan’s leg.
       Staples grabbed Ryan’s right leg again and tried to grab his left leg to put him on
his side and “put him in the hold.” As Ryan tried to push away, Staples testified, “[t]hen
it was like pop. It was loud. It was -- I mean, it was loud. You heard it. I heard it. And
then I could just feel in his body like -- I knew he was hurt.”
       Staples later told a paramedic that he and Ryan “were struggling; that there was a
fall and that he -- Ryan hurt his knee.”
       Staples notified the Slothowers about the incident and they returned to the
residence. When they arrived at the home, the Slothowers heard Ryan screaming. Ryan
lay on the floor with his leg swollen to twice the size of normal. Despite Ryan’s
temperature sensitivity, the air conditioner was off and the inside temperature was
84 degrees. By around 5:00 p.m. Ryan had only had a coffee drink and a small bag of
chips all day.
       Hospitalization and Surgery
       Ryan was taken by ambulance to Kaiser Hospital, suffering from a closed
multipart spiral oblique fracture. He underwent surgery under general anesthesia to
repair his leg.

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       Surgery and anesthesia carry many risks, including death. A patient may
experience aspiration, which is vomiting and taking the vomit into the lungs. Anyone
who undergoes general anesthesia runs the risk of aspiration. Ryan suffered
complications from the surgery and developed adult respiratory distress syndrome.
Eleven days after the incident, Ryan died.
       Dr. Brendan Carvalho’s Testimony
       Dr. Brendan Carvalho, an anesthesiologist, testified he had reviewed Ryan’s case.
He does not work for Kaiser Hospital. Carvalho testified regarding Kaiser Hospital’s
care of Ryan. Carvalho stated hospital employees proceeded in a manner well within the
standard of care. They had no difficulty intubating Ryan and gave him a small dose of
Versed, a sedative, and fentanyl. There was a brief period of oxygen desaturation.1
       Based on the tests Carvalho reviewed, Ryan appeared extubatable. There was no
evidence the extubation was rushed. According to Carvalho, it is difficult to keep the
tube in a patient, and you need a definite reason to delay extubation. The decision to
extubate is a judgment call, and in Ryan’s case the standard of care was met when the
decision was made to extubate. In a patient with Ryan’s history, the tube should not be
left in longer than necessary because it could cause swelling and other problems,
including infection. Less is better in terms of how long to leave the tube in.
       A patient like Ryan is difficult to keep comfortable with a tube in; therefore,
sedatives would have been required. Moving Ryan to a recovery room bed from the
operating table was a judgment call. In nonelective surgery the risk of aspiration of
stomach contents is high. To combat this, hospital staff inserted a tube with a cuff to
prevent food from going into the lungs.



1 Although Inalliance claims the use of the sedative caused Ryan to have a “severe
adverse reaction,” Carvalho testified that Ryan’s level of oxygen saturation was not
critically low.

                                             6
       Carvalho testified there were a number of references in the record to the
possibility that Ryan might have problems and need an extra monitoring plan for both
intubation and extubation. Carvalho stated, after reviewing the record, that it “looked
like there was a plan both with intubation as well as extubation.” The standard of care
did not require Ryan to be taken to the recovery room on ventilation.
       After Ryan was moved to the recovery room, the decision was made to reintubate
him. However, staff experienced difficulty in reintubating Ryan. Gagging caused by
reintubation, Carvalho testified, means the patient has the ability to prevent food from
entering the lungs. Prior to the operation, hospital staff were able to ventilate Ryan
without difficulty. The latter inability to ventilate could not have been predicted.
       Carvalho discussed the difficulty in ventilating Ryan: “[C]learly, the patient had
hypoxic problems, so oxygenation problems. And the reason could be a number of things
that’s been proposed, and I can go through a whole differential why his lungs were
problematic, but it could have been anything, like we mentioned, that there may have
been aspiration at some point either at the intubation or at the extubation.
       “There could have been complications during the surgery. Sometimes you can get
emboli, so bits of tissue shooting . . . with long bone fractures, so that could have gone
into his lung. Pulmonary embolus is always something we think of. There’s a whole
differential for why he may have become hypoxic.
       “And clearly, this was more than just respiratory depression where they were
struggling to ventilate him. Looked like he had underlying lung problems because the X-
ray and everything subsequent reflected that. [¶] . . . [¶]
       “. . . It’s very rare when you have an absolute diagnosis. So there’s always
possibilities and then you go through all of those and you try and work out with your
judgment what the most likely one is. And it’s really a judgment call.”




                                              7
       Carvalho testified that fat emboli are common with long-bone fractures.
Orthopedic surgery increases the risk of an embolus. Pulmonary emboli are unrelated to
anesthesia.
       After reviewing Ryan’s records, focusing on anesthesia, Carvalho testified Kaiser
Hospital employees met the standard of care at every juncture. During cross-
examination, Carvalho acknowledged Ryan’s records stated that he had been sensitive to
sedatives at age two and a half. Carvalho stated it took two hours to reintubate Ryan for
a variety of reasons: the patient was uncooperative, he had a difficult airway, and
attempts had to be brief because of the need to keep ventilating the patient. It was
foreseeable that Ryan was going to have more problems and complications than the
average patient.
       Dr. Mark Pham’s Testimony
       Dr. Mark Pham rendered anesthesia for Ryan during his surgery. Pham intubated
Ryan because he was an urgent case. Because of the risk that any food in Ryan’s
stomach could cause nausea, the tube had a cuff to prevent matter from getting into the
lungs. Intubation was surprisingly easy. Pham remained for 30 minutes and then a nurse
anesthetist remained to extubate Ryan at the appropriate time.
       After Ryan was extubated, he was transferred to recovery. During transport,
Ryan’s oxygen levels began to drop and he needed assistance breathing. The difficulty
could have been caused by air emboli, common in long-bone surgery; the contents of his
stomach having gone into his lungs; or underlying pulmonary problems. Pham returned
within minutes, ordered a reversal agent for the narcotics previously taken, and waited to
see if Ryan’s oxygen level improved. When it did not, Ryan was reintubated.
Reintubation proved difficult, and multiple attempts were necessary. These attempts did
not cause Ryan further injury. Ryan kept breathing during the attempts. In Pham’s
opinion, the injury to Ryan’s lungs was the result of the general anesthesia and the long
bone fracture risk “[t]hat comes with the territory, unfortunately.”

                                             8
       Dr. Michael Klein’s Testimony
       An orthopedic surgeon, Dr. Michael Klein, reviewed Ryan’s X-ray and
determined there had been a high-energy event that produced an “explosion of tissue.”
Ryan’s fracture resulted from a high-impact trauma, such as when a car strikes someone
or when the bone is bent around a fulcrum, a fixed point. According to Dr. Klein, it was
“anatomically impossible” for Ryan’s leg to have been injured in the manner Staples
described in his testimony. Instead, Dr. Klein testified the injury resulted from the leg
being deformed against the arm of the chair by great force.
       Dr. James Voigtlander’s Testimony
       Dr. James Voigtlander, the orthopedic surgeon who operated on Ryan’s leg,
testified. Voigtlander stated Ryan’s type of fracture “is typically from a higher energy
type of force applied to the limb. Most commonly it’s motor vehicle accidents . . . or
motorcycle accidents. Certainly seen it with boating accidents, rodeo accidents, things
like that where a tremendous amount of force is applied to break a femur bone. It’s the
largest bone in the body and takes a lot of force to break that bone.” A leg pulled against
the arm of a chair to create a lever point could cause such a fracture.
       Voigtlander was present when Ryan was extubated. Ryan’s oxygen saturation
level dropped, which is not unusual. As Ryan was moved to the recovery room, the level
dropped again. The decision was made to reintubate Ryan, which proved problematic.
Voigtlander stated surgery always involves life-threatening risks, but an untreated long-
bone fracture requires three to six months of bed rest or traction, which also involve risk.2




2 Inalliance argues another orthopedist, Robert Mitchell, M.D., noted Ryan had a history
of airway problems and respiratory depression that precluded the use of sedation in all
but life-threatening emergencies. However, Voigtlander testified he did not recall
Mitchell’s written note or whether Mitchell had informed him of any possible problems
in treating Ryan.

                                              9
       Nurses’ Testimony
       Two nurses who cared for Ryan testified. Nurse anesthetist Alexandrina Braica
testified the intubation was uneventful. When Ryan began to experience oxygen
desaturation, she repositioned his airway. Ryan began breathing and recovered quickly.
Desaturation is typical for a patient who has been given sedatives, as Ryan was. Braica
stated not everything that was done was written down and that although they had the
tools ready for a difficult intubation they were not needed.
       Nurse anesthetist Gary Jenkins relieved Braica and took over Ryan’s care. Jenkins
administered the reversal agents and stated Ryan had normal readings for someone
coming out of surgery. Ryan met the criteria for extubation. Leaving the tube in
presented risks.
       Jenkins believed Ryan could be safely moved into the recovery room. However,
shortly after, Jenkins noticed Ryan had begun to have breathing problems. Dr. Pham
returned and gave Ryan some Narcan. They had difficulty reintubating Ryan, and when
they were successful, Ryan’s condition remained the same.
       Testimony from Inalliance
       Inalliance’s program director for supported living, Donna Bettencourt, testified
Inalliance’s employee manual instructs employees that clients have the right to control
what happens in their homes. In Ryan’s case, that would mean making paper available to
him and not escalating his behavior by withholding paper.
       Bettencourt stated Staples violated Inalliance’s policy by “attempting to put hands
on somebody to calm them down” and fired him. When asked whether she believed
Staples did what he could to keep Ryan safe, Bettencourt answered “No.” Under
Inalliance’s policy, physical restraint should not be used. Restraining a client’s leg would
violate company policy.
       Another Inalliance employee, Contessa Edwards, who had worked with Ryan,
demonstrated how a staff member would calm a client such as Ryan by using soothing

                                             10
words and a gentle touch. When Ryan was crying, words would calm him down. If
Ryan was acting out, gentle physical contact might be necessary to prevent him from
injuring himself.
       Another of Ryan’s caregivers, Brian Volpi, testified that he had never restrained
Ryan. Restraint was not allowed under Inalliance’s policies. Threatening to take away
Ryan’s keys or wallet would only escalate the situation.
       Southside Testimony
       Southside’s executive director trained Staples. As part of that training, Staples
was told he “should never have to touch somebody.” Instead, the goal was to figure out
the cause of the behaviors and to de-escalate the behaviors before physical restraint was
required. The director also taught Staples that if physical restraint was necessary, it
should be done by two people similar in size to the client to avoid injury.
       Nonsuit
       After plaintiffs rested their case, defendants moved for a nonsuit, contending
plaintiffs had not designated experts to testify on cause of death, the standard of care, and
breach. The court denied the motion, concluding: “I don’t agree that expert testimony is
required in this case, and I think there’s been adequate testimony with respect to
establishing the nature of and the cause of death of Ryan . . . .”
       Defense Case
              Dr. David Downs’ Testimony
       Dr. David Downs, an anesthesiologist, testified that Kaiser Hospital’s treatment of
Ryan fell below the standard of care in at least two areas. According to Downs, Kaiser
Hospital fell below the standard of care in its decision as to when to awaken Ryan and
also in deciding when to remove the endotracheal tube.
       Downs based his assessment on his review of Ryan’s medical records. These
records, Downs stated, provided red flags based on past incidents that Ryan needed
prolonged ventilation after surgery. The records also revealed Ryan was sensitive to

                                             11
sedatives. Even though these incidents occurred when Ryan was a very young child,
because of his special needs, they should have alerted Kaiser Hospital that there might be
difficulties with the extubation.
       Downs also cited Ryan’s preoperation reaction to Versed as an indication that past
sensitivity was still present. In addition, the extubation criteria were not met, since Ryan
lacked the ability to breathe on his own. His history should have alerted Kaiser Hospital
of this problem. Kaiser’s inappropriate extubation breached the standard of care. Downs
testified Ryan’s femur fracture did not cause the injury to his lungs, nor did the operation
to repair his femur cause the lung injury. In Downs’s opinion, Kaiser Hospital employees
should have had a plan for Ryan’s extubation. Premature extubation caused Ryan to
aspirate and caused his lung injuries.
       Special Verdict Form
       The parties and the court discussed the verdict form off the record. In court,
defendants objected to the court’s refusal to ask for special findings on superseding
cause. The parties approved the verdict form given. The form required the jury to make
six findings: (1) Whether Staples was negligent; (2) If he was, whether his negligence
was a substantial factor in causing Ryan’s death; (3) Whether Kaiser Hospital nurses
and/or physicians were negligent; (4) If they were, whether their negligence was a
substantial factor in causing Ryan’s death; (5) What amount of money would compensate
the Slothowers for the loss of Ryan’s care, comfort, society, and companionship; and
(6) Assuming 100 percent represented the full liability for negligence or wrongful
conduct that caused Ryan’s death, what percentage was attributable to defendants and
what percentage to Kaiser Hospital’s physicians and/or nurses?
       Verdict
       The jury rendered a verdict finding that Staples was negligent and that his
negligence was a substantial factor in Ryan’s death. The jury also found Kaiser Hospital
not negligent. The jury assigned 100 percent of the fault to defendants and no fault to

                                             12
Kaiser. It awarded the Slothowers $1.2 million in noneconomic damages. The trial court
awarded the Slothowers costs, including expert witness fees. (Code Civ. Proc., § 998.)
       New Trial Motion
       Defendants filed a motion for a new trial and a motion for judgment
notwithstanding the verdict. Defendants argued the court erred in instructing the jury on
Kaiser Hospital’s role in Ryan’s death, that the Slothowers failed to meet their burden of
proof by failing to offer expert testimony on the standard of care, and that defendants
were entitled to offset the judgment by the amount of the Kaiser Hospital settlement. The
court denied the motions. Defendants filed a timely notice of appeal.
                                      DISCUSSION
                                    Instructional Error
       Defendants argue the trial court’s failure to give requested instructions on
causation prevented them from presenting their theory of the case, denying them a fair
trial. Under defendants’ theory, Ryan suffered two distinct injuries: a broken femur and
an injury to his lungs. At trial, defendants contended that Kaiser Hospital’s conduct was
a substantial factor in causing Ryan’s lung injury subsequent to his broken leg.
Defendants assert: “Ryan would have survived but for the unexpected incompetence of
Kaiser Hospital staff in addressing and protecting against Ryan’s known risk for
respiratory failure.”
Background
       Out of the jury’s presence, the court and the parties discussed proposed jury
instructions. At the conclusion of the discussions, the court noted: “[I]t’s the
understanding of the Court, and correct me if I’m wrong counsel, but with respect to the
jury instructions which are going to be given by the Court, there are no objections -- there
are some objections to proposed jury instructions by defense counsel, as I understand it,
that the Court does not propose to give and . . . I have asked defense counsel to put that



                                             13
on the record and make a record with respect to what he feels should be given which the
Court has indicated it will not give.”
        Defendants requested four instructions on causation and responsibility that the
court declined to give. Defense counsel agreed to the proposed instructions the court did
give.
        Instructions Proposed by Defendant But Not Given
        Defense counsel requested an instruction on apportionment of responsibility.
(CACI No. 406.) The proposed instruction states: “Defendants claim that the negligence
of Kaiser contributed to plaintiffs’ harm. To succeed on this claim, defendants must
prove both of the following:
        “1. That Kaiser was negligent; and
        “2. That the negligence of Kaiser was a substantial factor in causing plaintiffs’
harm.
        “If you find that the negligence of more than one person including defendants,
plaintiffs and Kaiser was a substantial factor in causing plaintiffs’ harm, you must then
decide how much responsibility each has by assigning percentages of responsibility to
each person on the verdict form. The percentages must total 100 percent.”
        Defense counsel also requested CACI No. 431, an instruction on causation, which
states: “A person’s negligence may combine with another factor to cause harm. If you
find that defendants’ negligence was a substantial factor in causing plaintiffs’ harm, then
defendants are responsible for the harm. Defendants cannot avoid responsibility just
because some other person, condition, or event was also a substantial factor in causing
plaintiffs’ harm.”
        Another requested instruction, CACI No. 432 (causation: third-party conduct as
superseding cause) states: “Defendants claim that they are not responsible for plaintiffs’
harm because of the later misconduct of Kaiser. To avoid a legal responsibility for the
harm, defendants must prove all of the following[:]

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       “1. That Kaiser’s conduct occurred after the conduct of defendants;
       “2. That a reasonable person would consider Kaiser’s conduct as a highly unusual
or an extraordinary response to the situation;
       “3. That defendant did not know and had no reason to expect that would act
Kaiser [sic] in a negligent manner; and
       “4. That the kind of harm resulting from Kaiser’s conduct was different from the
kind of harm that could have been reasonably expected from defendants’ conduct.”
       Finally, defense counsel requested CACI No. 434, on alternative causation: “You
may decide that more than one of the defendants was negligent, but that the negligence of
only one of them could have actually caused plaintiffs’ harm. If you cannot decide which
defendant caused plaintiffs’ harm, you must decide that each defendant is responsible for
the harm.
       “However, if a defendant proves that they did not cause plaintiffs’ harm, then you
must conclude that defendant is not responsible.”
       Instructions Given
       The court gave a modified form of BAJI No. 1466, informing the jury that if the
defendants were found liable, they must also be found liable for aggravation of the injury
or any additional injury caused by subsequent negligent medical care. The court
instructed: “If you find that the defendant Robert Staples is liable for the original injury
to the decedent, Ryan Slothower, then defendant Robert Staples is also liable:
       “(1) For any aggravation of the original injury or for any additional injury caused
by negligent medical or hospital treatment or care of the original injury.”
       The court also instructed the jury on defendants’ claim that Kaiser Hospital
personnel were negligent and caused Ryan’s death. In addition, the court gave
instructions on proving medical negligence.




                                             15
Discussion
       Inalliance argues the court committed prejudicial error by refusing its requested
instructions on alternative causation. According to Inalliance, “These jury instructions
would have enabled the jury to consider alternative causes of Ryan’s ultimate death,
including the acts of Kaiser. Without hearing these instructions, the jury was without
knowledge of how to apportion liability among several tortfeasors, without knowledge of
the role of superseding causes and when they applied, as well as without knowledge of
the role of alternative causation. Without hearing instruction as to alternative means of
assessing causation, it is no wonder the jury found Kaiser not to be negligent and
apportioned full liability on [defendants] - the jury was not provided with any instructions
which would have instructed them otherwise.” In addition, Inalliance contends, the court
compounded the error by instructing the jury that it should treat the negligence of Kaiser
Hospital as having been caused by defendants.
       A party is entitled upon request to correct, nonargumentative jury instructions on
every theory advanced by the party that is supported by substantial evidence. However,
the trial court is not required to give instructions that are not correct statements of the law
or that are incomplete or misleading. (Norman v. Life Care Centers of America, Inc.
(2003) 107 Cal.App.4th 1233, 1242.)
       A superseding cause is an act of a third party or other force that by its intervention
prevents the actor from being liable for harm to another which his or her antecedent
negligence is a substantial factor in bringing about. The doctrine requires more than
mere negligence on the part of the intervening actor. The fact that the third person’s
intervening act is done in a negligent manner does not make it a superseding cause if a
reasonable person, knowing the situation existing when the act of the third person is
done, would not consider the act highly extraordinary, or if the act is a normal response to
a situation created by the defendant’s conduct and the manner in which the intervening
act is done is not extraordinarily negligent. (Perez v. VAS S.P.A. (2010) 188 Cal.App.4th

                                              16
658, 680-681 (Perez).) Thus, “the defense of ‘superseding cause,’ . . . absolves a
tortfeasor, even though his conduct was a substantial contributing factor, when an
independent event intervenes in the chain of causation, producing harm of a kind and
degree so far beyond the risk the original tortfeasor should have foreseen that the law
deems it unfair to hold him responsible.” (Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 573, fn. 9.)
       Third party negligence that is the immediate cause of an injury may be viewed as a
superseding cause when it is so highly extraordinary as to be unforeseeable. (Perez,
supra, 188 Cal.App.4th at p. 681.) The intervening act of a third party does not relieve
the original wrongdoer of liability if the intervening act was a reasonably foreseeable
result of the original actor’s wrongdoing. (Davis v. Erickson (1960) 53 Cal.2d 860, 863.)
This requirement focuses on the foreseeability of the “ ‘ “risk of harm, not of the
particular intervening act.” ’ ” (Perez, at p. 681, italics omitted.)
       “ ‘[I]f the likelihood that a third person may act in a particular manner is the
hazard or one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortious or criminal does not prevent the actor from
being liable for harm caused thereby.’ [Citations.]” (Koepke v. Loo (1993)
18 Cal.App.4th 1444, 1449.) Here, the actions taken by Kaiser Hospital, administering
the Versed, intubating and extubating Ryan, and moving him to the recovery room, were
by their very nature foreseeable consequences of Staples’s conduct. These alleged acts
were classic examples of the types of hazards that made Staples’s conduct negligent.
       Inalliance argues legal causation is a question of fact for the jury. However, when
undisputed facts leave no room for a reasonable difference of opinion, there is no issue
for the jury to resolve. (Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400, 417;
Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1035.) Under the circumstances of this
case, we agree with the trial court that the superseding cause doctrine does not apply
because the foreseeability issue was resolved against Inalliance as a matter of law.

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                                Sufficiency of the Evidence
       Inalliance argues that since the Slothowers alleged caregiver professional
negligence, they were required to call an expert to testify as to the standard of care and
breach of that standard. At trial, after the Slothowers failed to present expert testimony
on the standard of care for a professional caregiver, Inalliance moved for nonsuit. The
trial court disagreed that the facts required expert testimony and denied the motion.
       On appeal, Inalliance renews its contention that when negligence is based on the
skill of a professional, the plaintiff must present expert testimony in order to sustain the
burden of proof. According to Inalliance, “This is particularly true of the methods,
techniques and training relating to how to control and mitigate the risk of injury to a
developmentally disabled adult engaged in violent behavior.” The lack of such testimony
renders the evidence insufficient to establish Staples’s negligence.
       Inalliance contends the standard of care applicable to professional care services
requires expert testimony because the duties are beyond the common knowledge of the
layman. According to Inalliance, “It is beyond the common experience of jurors to know
what behavioral control techniques should have been employed when Ryan engaged in
his violent outburst.
       “. . . An assessment of Robert Staples’ conduct is dependent upon specialized
knowledge of the developmentally disabled and of the responsibilities of the direct
service care provider.” Specifically, Inalliance argues, “[i]t is beyond the common
experience of jurors to know what behavioral control techniques should have been
employed when Ryan engaged in his violent outburst.”
       We review a trial court’s decision on the necessity for expert testimony under the
abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1118 (Guerra).)
We review the denial of a motion for nonsuit under the substantial evidence test.
(Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 263.)



                                             18
         As a general rule, expert witness testimony is required in a professional negligence
case to establish the applicable standard of care, whether that standard was met or
breached by the defendant, and whether the defendant’s negligence caused the plaintiff’s
damages. However, such expert testimony is not required where the issue is within the
common knowledge of the jury. (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542.)
         We cannot find the trial court abused its discretion when it determined no expert
testimony was necessary under the facts of the case. In addition, we find substantial
evidence in support of the court’s denial of Inalliance’s motion for a nonsuit.
         At trial, Inalliance’s program director for supported living, Bettencourt, testified
that Inalliance did not allow physical restraints and that a “hands on” approach to
controlling patients violated company policy. Bettencourt also testified Inalliance staff
should not do anything to escalate a patient’s adverse behavior. She testified that if Ryan
was crying for paper, Staples should not have escalated the situation by withholding
paper.
         Several other Inalliance employees testified regarding the incident and Staples’s
conduct. Volpi testified that threatening Ryan would only “exacerbate the situation.”
Edwards testified that when Ryan cried, talking would calm him down. When Ryan
acted out in ways that could lead to injury, such as banging his head, gentle physical
contact was necessary.
         In addition, Rhoades, Southside’s executive director, testified that staff should
never have to touch somebody. According to Rhoades, if physical restraint became
necessary, the size of those providing the restraint, as well as the size of the person being
restrained, would have to be considered to avoid potential injury.
         Finally, the jury was informed that Inalliance’s policy stated: “There’s currently
no authorization to apply physical restraints to any of the people we support.” Despite
this stated policy, Staples testified that although he knew Ryan would become upset if he
didn’t get paper, Staples withheld paper, exacerbating Ryan’s behavior. Staples also

                                               19
testified he tried to “physically manage” Ryan and told a responding paramedic that Ryan
was hurt when Staples struggled with him and they fell.
       In medical negligence cases, expert testimony is required “only if the facts clearly
show that the procedure is so unusual and complex that the jury could not rest their
understanding of it upon their common knowledge.” (Bardessono v. Michels (1970)
3 Cal.3d 780, 790.) Here, the facts before the jury concerning Staples’s alleged
negligence were not “so unusual and complex” as to be beyond the understanding or
knowledge of the jury. In Massey v. Mercy Medical Center Redding (2009)
180 Cal.App.4th 690, caregivers knew the plaintiff, a patient, ran the risk of falling and
required assistance walking. The plaintiff requested aid to go to the bathroom. A nurse
helped him into a walker and then left, stating he would be right back. When the nurse
failed to return, the plaintiff attempted to walk to the bathroom and fell, fracturing his
back. (Id. at p. 693.) We held that expert opinion was not required to establish the
nurse’s negligence, since both the standard of care and the breach were within the sphere
of knowledge and obvious to the average person. (Id. at pp. 694-696.) We find the facts
before us in the present case compel the same result.
          Offset of the Kaiser Hospital Settlement Against the Damage Award
       Inalliance argues the trial court failed to apply a set-off of the Slothowers’
settlement with Kaiser Hospital to the jury’s damage award. Kaiser’s settlement was
$30,000 in cash plus an assignment of Kaiser’s $145,158 lien to the Slothowers. The
settlement totaled $175,158. Under Code of Civil Procedure section 877, Inalliance
contends, the court was required to reduce the judgment.
       Section 877 of the Code of Civil Procedure provides, in part: “Where a release,
dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is
given in good faith before verdict or judgment to one or more of a number of tortfeasors
claimed to be liable for the same tort . . . it shall have the following effect:



                                               20
       “(a) It shall not discharge any other such party from liability unless its terms so
provide, but it shall reduce the claims against the others in the amount stipulated by the
release, the dismissal or the covenant, or in the amount of the consideration paid for it
whichever is greater.” Inalliance argues the court refused to reduce the amount of the
Kaiser Hospital settlement as required under the statute.
       However, Civil Code section 1431.2, subdivision (a) states that liability for
noneconomic damages is several only and not joint. Under section 1431.2,
subdivision (a), each defendant is liable only for the amount of noneconomic damages
allocated to that defendant in direct proportion to that defendant’s percentage of fault, and
a separate judgment will be entered against that defendant for that amount. “[A] personal
injury plaintiff’s valid ‘claim’ against one such tortfeasor for noneconomic damages can
never be the liability of ‘the others.’ ” (Espinoza v. Machonga (1992) 9 Cal.App.4th 268,
274.) Therefore, one tortfeasor’s pretrial settlement of a noneconomic damage claim is
not payment of a claim for which the other tortfeasors might ever be jointly and severally
liable. (Id. at pp. 274-275.)
       Here, the jury awarded only noneconomic damages, finding Inalliance 100 percent
at fault and Kaiser zero percent at fault. On appeal, Inalliance renews its claim that “the
value of the Kaiser settlement must have contained some amount which represented
Kaiser’s proportionate share of non-economic damages[; therefore] this award by the jury
was improper and should have been offset by the trial court. Without this offset,
plaintiffs are receiving a recovery of more than 100%. This is contrary to the law of
comparative fault and, for this reason, the trial court erred in refusing to permit an offset.”
       In McComber v. Wells (1999) 72 Cal.App.4th 512, the court firmly rejected this
argument: “We find disingenuous Wells’s . . . argument [that] the judgment for
noneconomic damages is subject to an offset from the pretrial settlements. All the cases
upon which Wells relies when discussing economic damages also plainly say the same
rules do not apply to noneconomic damages. [Citations.] ‘[E]ach defendant is solely

                                              21
responsible for its share of noneconomic damages under Civil Code section 1431.2
[Proposition 51]. Therefore, a nonsettling defendant may not receive any setoff under
section 877 for the portion of a settlement by another defendant that is attributable to
noneconomic damages.’ [Citation.]” (McComber, at p. 518.) The court did not err in
refusing to offset the Kaiser Hospital settlement against the damage award.
                       Admissibility of the Kaiser Hospital Settlement
       Inalliance contends the trial court erred in granting the Slothowers’ motion to
exclude evidence at trial of their settlement with Kaiser Hospital. Inalliance argues the
Kaiser Hospital settlement was admissible to show bias on the part of the Slothowers’
expert witness, Dr. Carvalho. In addition, Inalliance argues the trial court was required
under Code of Civil Procedure section 877, subdivision (a) to offset the damages awarded
against them by the amount of the Slothowers’ pretrial settlement with Kaiser Hospital.
       We review a trial court’s evidentiary rulings for an abuse of discretion. We will
not disturb the court’s ruling unless the trial court exercised this discretion in an arbitrary,
capricious, or absurd manner resulting in a miscarriage of justice. (Guerra, supra,
37 Cal.4th at p. 1113.)
       As Inalliance acknowledges, evidence of settlements is inadmissible to prove
liability. (Evid. Code, §§ 1152, 1154.) Instead, Inalliance argues, the settlement was
admissible to impeach the testimony of the Slothowers’ expert, Dr. Carvalho, who
testified that Kaiser Hospital employees who tended Ryan were not negligent. The
exclusion of evidence of Kaiser Hospital’s settlement with the Slothowers, Inalliance
claims, constitutes an abuse of discretion.
       However, at its root, the evidence Inalliance seeks to have admitted is basically
that Kaiser was in some way liable for Ryan’s injuries. Inalliance argues the court erred
in excluding testimony regarding the Kaiser Hospital settlement “given that the court had
already granted a motion for good faith settlement, which could only be brought by a
joint tortfeasor, i.e., a party at least proportionately at fault.”

                                                22
       Inalliance contends a witness’s settlement with a party is admissible to show the
witness’s bias or prejudice, citing Moreno v. Sayre (1984) 162 Cal.App.3d 116, 126
(Moreno). Therefore, Inalliance should have been permitted to ask Dr. Carvalho whether
the Slothowers’ settlement with Kaiser Hospital influenced his testimony.
       However, Moreno considered a sliding scale settlement agreement, in which the
settling defendant’s exposure depended upon the outcome of the trial against the
nonsettling defendant. When a defendant enters into a sliding scale settlement with a
plaintiff and later testifies against the nonsettling defendant, the court may disclose to the
jury the existence and contents of the settlement agreement to inform the jury of possible
witness bias. The trial court may instruct the jury that the witness has an interest in
maximizing the damages awarded to the nonsettling defendant. (Moreno, supra,
162 Cal.App.3d at pp. 126-127; Code Civ. Proc., § 877.5, subd. (a)(2).) No such sliding
scale settlement appears in the present case. Moreno’s logic does not apply. The court
did not err in excluding evidence of the Slothowers’ settlement agreement with Kaiser
Hospital.
                                    Expert Witness Fees
       Finally, Inalliance claims the trial court improperly awarded the Slothowers expert
witness fees under Code of Civil Procedure section 998. Section 998, subdivision (c)(1)
states, in part: “If an offer made by a defendant is not accepted and the plaintiff fails to
obtain a more favorable judgment or award, the plaintiff shall not recover his or her
postoffer costs and shall pay the defendant’s costs from the time of the offer.” The
awarding of expert fees under section 998 lies within the discretion of the trial court and
we can only set aside such an award if the court abuses that discretion. (Hilliger v.
Golden (1980) 107 Cal.App.3d 394, 397 (Hilliger).)
       The jury awarded the Slothowers $1.2 million. Inalliance argues the Slothowers
served two offers to compromise, one on each defendant in the amount of $649,999, for a



                                              23
total of $1,299,998. Citing Hilliger, Inalliance contends that these offers superseded the
Slothowers’ earlier offer to compromise.
       Inalliance reasons that since the verdict form required the jury to make a finding
that if defendant Staples was liable then defendant Inalliance was liable, Staples and
Inalliance were not to be considered separately when it came to the offers to compromise
under Code of Civil Procedure section 998. Given that defendants were considered for
liability jointly on the verdict form, the section 998 offers to each of them must be
combined. Therefore, the total value of the section 998 offer to defendants of $1,299,998
was more than the verdict amount of $1.2 million, and the Slothowers were not entitled to
recover $16,800 in expert witness fees.
       We disagree. In Hilliger, supra, 107 Cal.App.3d 394, a plaintiff injured in a car
accident served two separate offers on two defendants: $14,999.99 for the driver and
$9,999.99 for the car’s owner. The defendants rejected the offers, and following trial the
verdict was against the defendants jointly for $15,000. The trial court denied the plaintiff
expert witness costs under Code of Civil Procedure section 998 because the judgment
was less than the two offers combined. (Hilliger, at p. 396.)
       The appellate court reversed. The court found the interests of the two defendants
identical; both were joined in the action; the judgment was not apportioned; and the
offers were single, separate, and unconditional offers to each of the defendants. (Hilliger,
supra, 107 Cal.App.3d at pp. 399-401.) The court also noted: “To disallow to appellant
her costs expended for expert witnesses testifying at trial would thwart the tenor and the
spirit of the law under which an offer to compromise is made.” (Id. at p. 400.)
       As in Hilliger, the Slothowers made separate offers to two distinct defendants.
The offers cannot be aggregated for purposes of Code of Civil Procedure section 998.
We are not persuaded by Inalliance’s attempt to distinguish Hilliger by pointing out the
two offers in Hilliger were made months apart while the offers in the present case were



                                             24
made concurrently. We cannot find this distinction undermines Hilliger’s applicability to
the present case.
       Nor do we find Inalliance’s reliance on Burch v. Children’s Hospital of Orange
County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537 compels a different result. When
a plaintiff submits a Code of Civil Procedure section 998 offer in a case with multiple
defendants, the offer to any defendant must be sufficiently specific to permit the
defendant to determine the exact amount the plaintiff is seeking from him or her.
(Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 586.) In Burch, the court
found an unapportioned, lump-sum offer to multiple defendants too uncertain to allow a
particular defendant to determine the exact amount sought from that defendant. (Burch,
supra, 109 Cal.App.4th at pp. 545-548.) Here, there is no lump sum, but two separate
section 998 offers, one to each defendant.
                                     DISPOSITION
       The judgment is affirmed. The Slothowers shall recover costs on appeal.



                                                           RAYE              , P. J.



We concur:



         BLEASE             , J.



         ROBIE              , J.




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