Standard of Care
The standard of care in the medical profession appears to be very low.
The standard of care in the medical profession appears to be very low.
Gee v. South. Cal. Permanente Med. Group
FearNotLaw.com
"In selecting the placement for the second thoracentesis, Chan did not review the X-
rays or CT scans, nor did he use ultrasound or CT scan equipment to assist him in
locating the fluid in Gee’s chest. Rather, Chan inserted a new catheter needle at a
location slightly higher and more lateral than the first insertion, but was unable to
draw any fluid from Gee’s chest.
"In performing one or both of the thoracenteses, Chan lacerated Gee’s spleen, which
required Gee to undergo emergency surgery to remove his spleen. Surgeons
performed three additional surgeries to close Gee’s abdomen and later repair his
abdominal wall. All told, Gee spent a total of 45 days in the hospital, including one
week in intensive care."
Filed 11/3/11 Gee v. South. Cal. Permanente Med. Group CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRIAN T. GEE,
Plaintiff and Appellant,
v.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP et al.,
Defendants and Respondents.
G043985 (Super. Ct. No. 30-2008-00108173)
Appeal from a judgment of the Superior Court of Orange County, Luis A. Rodriguez, Judge. Affirmed.
Sam Walker for Plaintiff and Appellant.
Arnold & Porter, Lawrence A. Cox, Brian K. Condon; Reback, McAndrews, Kjar, Warford & Stockalper and
Terrence J. Schafer for Defendants and Respondents.
* * *
Plaintiff Brian T. Gee appeals from an order denying his petition to vacate an arbitration award in favor of
defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Inc., Kaiser
Foundation Hospitals (collectively, Kaiser) and Joseph Chan, M.D. (Chan).
Gee sought to vacate the award on his medical malpractice claim on the ground the arbitrator erroneously
excluded material evidence. The arbitrator limited Gee to one expert on the standard of care because Gee
failed to show the testimony of his two designated standard-of-care experts would not be duplicative. Gee
argued this ruling destroyed his evidentiary presentation because he based his case on using both
experts.
Gee’s appeal is premature because an appeal lies from the judgment confirming the arbitration award,
not from an order denying a petition to vacate the arbitration award, and the trial court did not confirm the
arbitration award or enter judgment. Nonetheless, we exercise our discretion to hear Gee’s appeal
because the trial court should have confirmed the award and entered judgment when it denied Gee’s
petition. Dismissing the appeal would only unnecessarily delay resolution of this case and needlessly
consume both judicial and private resources.
On the merits, we affirm the trial court’s decision denying Gee’s petition. Gee failed to show that the
arbitrator’s ruling limiting him to one expert substantially prejudiced his ability to fairly present his case by
excluding material evidence. (See Code Civ. Proc., § 1286.2, subd. (a)(5); all statutory references are to
the Code of Civil Procedure unless otherwise noted.) Accordingly, we affirm the judgment.
I
Facts and Procedural History
Kaiser admitted Gee to one of its hospitals and its doctors diagnosed him with severe
pancreatitis. X-rays and CT scans revealed Gee also suffered from pleural effusion, or fluid
in the chest cavity surrounding the lungs. Gee’s attending physician asked Chan to
evaluate whether Gee required a bedside thoracentesis to test for infection. To perform a
thoracentesis, a physician inserts a needle into the patient’s back between two ribs and into
the chest cavity surrounding the lungs. The physician then draws a small amount of fluid
from the cavity that is tested for infection. The procedure also may be used to drain fluid
from the chest cavity.
Chan reviewed Gee’s X-rays and CT scans to determine the volume and location of the
fluid in Gee’s chest, and physically examined Gee to confirm the fluid’s location. The
examination included a percussion test in which Chan repeatedly thumped on Gee’s back
at different locations and listened for changes in the sound. Based on the X-rays, CT
scans, and physical examination, Chan selected the space between Gee’s 10th and 11th
ribs to perform the thoracentesis. Chan inserted a catheter needle at that location, but
could not draw any more than two cubic centimeters of bloody fluid from Gee’s chest.
Chan decided not to send the fluid he initially drew for testing. Instead, Chan performed a
second thoracentesis to try and draw more fluid from a different location.
In selecting the placement for the second thoracentesis, Chan did not review the
X-rays or CT scans, nor did he use ultrasound or CT scan equipment to assist him
in locating the fluid in Gee’s chest. Rather, Chan inserted a new catheter needle
at a location slightly higher and more lateral than the first insertion, but was
unable to draw any fluid from Gee’s chest.
In performing one or both of the thoracenteses, Chan lacerated Gee’s spleen,
which required Gee to undergo emergency surgery to remove his spleen.
Surgeons performed three additional surgeries to close Gee’s abdomen and later
repair his abdominal wall. All told, Gee spent a total of 45 days in the hospital,
including one week in intensive care.
Gee filed a medical malpractice action against Kaiser and Chan and the parties stipulated
to submit Gee’s claim to binding arbitration. Gee designated Drs. Richard W. Light and
Nader Kamangar as his expert witnesses regarding the standard of care for performing a
thoracentesis. Upon receiving Gee’s expert designation, Kaiser and Chan requested that
Gee withdraw one of these experts because they covered the same subject matter. Gee
declined, explaining that Light and Kamangar’s testimony would not be duplicative.
Light is a pulmonologist from Vanderbilt University School of Medicine whom Gee touted as
the preeminent authority and author of the leading treatise on pleural diseases.
During his videotaped deposition, Light acknowledged he last performed a thoracentesis
approximately 25 years ago, but continued to instruct other physicians on pleural diseases.
Light testified Chan breached the standard of care by (1) performing the first
thoracentesis at a location too low on Gee’s back and failing to use an ultrasound or a CT
scan to confirm the location of the fluid; (2) failing to send the fluid sample from the first
thoracentesis for testing before performing a second thoracentesis; and (3) performing the
second thoracentesis at a location lateral to the first location, but not much higher on Gee’s
back. Light also testified the percussion method Chan used to determine the fluid’s location
during Gee’s physical examination may fall within the standard of care, puncturing the
spleen is a common complication for the thoracentesis procedure, and a small needle can
puncture the spleen without causing complications.
Kamangar is a pulmonologist from Olive View-UCLA Medical Center who regularly performs
thoracenteses and instructs medical students and fellows on how to perform the procedure.
During his deposition, Kamangar testified Chan breached the standard of care by (1)
performing both thoracenteses at locations too low on Gee’s back; (2) using a large
catheter needle rather than a smaller needle when the purpose for the thoracenteses was
to draw a sample for testing rather than drain the fluid; (3) performing the second
thoracentesis without testing the sample from the first thoracentesis; and (4) failing to use
ultrasound or CT scan equipment to determine the location for the two thoracenteses.
Finally, Kamangar opined that Chan caused Gee’s injuries by lacerating his spleen during
one or both of the procedures.
After deposing Light and Kamangar, Kaiser and Chan again requested that Gee withdraw
one of his experts because their deposition testimony regarding the standard of care was
duplicative. Gee refused and Kaiser and Chan moved in limine to exclude either Light or
Kamangar from testifying at the arbitration hearing.
Gee opposed the motion, explaining Kamangar was his “primary expert,” but “Dr. Light
corroborates Dr. Kamangar’s opinion about Dr. Chan’s breach of the standard of care.
Contrary to [Kaiser and Chan’s] declaration, however, his testimony and Dr. Kamangar’s
are not duplicative. [Gee] offers [Light’s] videotaped deposition as additional evidence that
will be helpful to the fact finder.” Gee further explained he intended to show Light’s 42-
minute videotaped deposition at the arbitration and then call Kamangar to testify in-person.
Gee’s written opposition failed to identify any specific differences between Light and
Kamangar’s testimony. At the hearing on the in limine motion, Gee argued the two
physicians “would provide a different perspective on the issues” and “Dr. Kamangar would
voice a strong opinion about the needle used by Dr. Chan, a point Dr. Light had not
addressed.”
The arbitrator granted the motion, explaining Gee failed to show how Light’s and Kamangar’
s testimony regarding the standard of care would not be duplicative. The arbitrator’s ruling
allowed Gee to decide which expert he would call at the arbitration hearing. Gee elected to
show Light’s videotaped deposition rather than call Kamangar to testify in-person. Kaiser
called its own expert to testify regarding the standard of care and Chan also testified he did
not breach the standard of care.
After hearing all evidence, the arbitrator issued a decision in Kaiser and Chan’s favor
based on the findings that Gee failed to show Chan breached the standard of care and
also failed to offer any evidence of causation. The arbitrator explained that he accepted
Light’s videotaped testimony as an expert, but found it “to be vague, contradictory and of
little or no value in determining the issues.” With respect to the standard of care, the
arbitrator explained that all expert testimony acknowledged thoracentesis fell within the
standard of care as an appropriate procedure to use in addressing Gee’s pleural effusion,
and Light’s opinion that in retrospect another method for performing the thoracentesis may
have been preferable did not establish Chan breached the standard of care.
Gee petitioned the trial court to vacate the arbitrator’s decision on the ground the arbitrator
substantially prejudiced Gee’s rights by refusing to hear material evidence, namely,
Kamangar’s testimony. After reviewing the transcripts from Light’s and Kamangar’s
depositions, the trial court issued an order denying Gee’s petition. The trial court, however,
did not confirm the arbitrator’s decision and therefore did not enter judgment for Kaiser and
Chan. Gee appealed from the “Order Denying Petition to Vacate Arbitration Award — CCP
section 1294.”
II
Discussion
A. This Court Exercises Its Discretion to Decide Gee’s Premature Appeal
A threshold issue we must address is whether this court has jurisdiction to consider Gee’s
appeal from the trial court’s order denying his petition to vacate the arbitration award. “[T]
he right of appeal is wholly statutory . . . .” (Powers v. City of Richmond (1995) 10 Cal.4th
85, 109.) Section 1294 authorizes an aggrieved party to appeal from an order dismissing a
petition to vacate an arbitration award and also from a judgment confirming an arbitration
award. (§ 1294, subds. (b) & (d).) Section 1294, however, does not authorize an appeal
from an order denying a petition to vacate an arbitration award. (Mid-Wilshire Associates v.
O’Leary (1992) 7 Cal.App.4th 1450, 1454 (Mid-Wilshire) [appeal dismissed because an
order denying a motion to vacate an arbitration award is not an appealable order].)
Here, the trial court entered an order denying Gee’s petition to vacate the arbitration
award, but did not dismiss the petition or enter a judgment confirming the arbitration award.
Accordingly, there is no appealable order or judgment supporting this appeal.
Our analysis, however, does not end there because the Code of Civil Procedure required
the trial court to confirm the arbitration award and enter judgment once the court denied
Gee’s petition to vacate the award. (Law Offices of David S. Karton v. Segreto (2009) 176
Cal.App.4th 1, 8-9 (Segreto).) Section 1286 states, “If a petition or response under this
chapter is duly served and filed, the court shall confirm the award as made, . . . unless in
accordance with this chapter it corrects the award and confirms it as corrected, vacates the
award or dismisses the proceeding.” (§ 1286.)
Section 1286 therefore gave the trial court four options once Gee filed his petition to
vacate: It could “‘(1) confirm the award, (2) correct the award and confirm it as corrected,
(3) vacate the award, or (4) dismiss the proceedings.’ [Citation.]” (Segreto, supra, 176 Cal.
App.4th at p. 8.) In other words, “‘the court must confirm the award, unless it either vacates
or corrects it. [Citation.]’ [Citation.]” (Ibid., original italics.) Moreover, once a trial court
confirms an arbitration award, section 1287.4 requires the court to enter judgment in
conformity with the award. (Segreto, at p. 9; § 1287.4 [“If an award is confirmed, judgment
shall be entered in conformity therewith”].)
This statutory framework explains why section 1294 does not authorize an appeal from an
order denying a petition to vacate an arbitration award. If the trial court denies a petition to
vacate, the court must confirm the award and enter judgment in conformity therewith.
(Segreto, supra, 176 Cal.App.4th at p. 9.) An appeal lies from that judgment and the
unsuccessful party on the petition to vacate may challenge that ruling when appealing from
the judgment. (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
These authorities render Gee’s appeal premature in the same way as an appeal from an
order sustaining a demurrer without leave to amend or an order granting summary
judgment. In both instances the appeal lies from the judgment entered after the order
sustaining the demurrer or granting summary judgment, not from the underlying order.
(Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396 [“An order
sustaining a demurrer without leave to amend is not appealable, and an appeal is proper
only after entry of a dismissal on such an order”]; Kasparian v. AvalonBay Communities
(2007) 156 Cal.App.4th 11, 14, fn. 1 [“An appeal lies from the judgment, not from an order
granting a summary judgment motion”].)
Because Gee prematurely appealed from the order denying his petition to vacate the
arbitration award rather than the judgment confirming the award, we could dismiss the
appeal for want of appellate jurisdiction. (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
Doing so, however, would result only in a remand to the trial court for it to enter judgment
followed by Gee filing a second appeal raising the same challenges presented on this
appeal.
California Rules of Court, rule 8.104(d)(2) grants appellate courts the discretion to hear a
premature appeal: “The reviewing court may treat a notice of appeal filed after the superior
court has announced its intended ruling, but before it has rendered judgment, as filed
immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).) In numerous
cases, appellate courts have exercised the discretion to hear premature appeals from
orders sustaining demurrers or granting summary judgment by construing the orders as
judgments. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527-528, fn. 1 [treating order
sustaining demurrer as an appealable order]; Levy v. Skywalker Sound (2003) 108 Cal.App.
4th 753, 761, fn. 7 [construing order granting summary judgment as incorporating
appealable judgment].)
To avoid further delay and to conserve both judicial and private resources, we exercise our
discretion under California Rules of Court, rule 8.104(d)(2) and construe the order denying
Gee’s petition to vacate the arbitrator’s award as a judgment confirming the award. We
proceed to decide Gee’s appeal on the merits.
B. Gee Failed to Establish a Basis for Vacating the Arbitration Award
1. Limited Judicial Review of an Arbitration Award
“[T]he Legislature has expressed a ‘strong public policy in favor of arbitration as a speedy
and relatively inexpensive means of dispute resolution.’ [Citations.]” (Moncharsh v. Heily &
Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) In furtherance of that policy, courts “‘“indulge
every intendment to give effect to such proceedings.”’” (Ibid.)
“[I]t is the general rule that parties to a private arbitration impliedly agree that the arbitrator’
s decision will be both binding and final.” (Moncharsh, supra, 3 Cal.4th at p. 9.) To carry out
the parties’ intent that arbitration provide a quick and final resolution to their dispute,
judicial intervention in the arbitration process is kept to a minimum. “The arbitrator’s
decision should be the end, not the beginning, of the dispute.” (Id. at p. 10.)
Consequently, the merits of the parties’ dispute generally are not subject to judicial review.
(Moncharsh, supra, 3 Cal.4th at p. 11.) Indeed, courts will not review an arbitrator’s
decision for errors of fact or law, including any errors in the arbitrator’s reasoning and the
sufficiency of the evidence supporting the arbitrator’s award. (Ibid.) Even “an error of law
apparent on the face of the award that causes substantial injustice does not provide
grounds for judicial review.” (Id. at p. 33.) By voluntarily submitting their dispute to
arbitration, the parties assume the risk the arbitrator may make a mistake. (Ibid.)
To ensure overall fairness in the arbitral process and to guard against serious errors in the
award itself, the Legislature authorizes limited judicial review of arbitration awards.
(Moncharsh, supra, 3 Cal.4th at p. 12.) Courts may vacate an arbitration award only on the
grounds identified in section 1286.2. (Haworth v. Superior Court (2010) 50 Cal.4th 372,
387.) Those grounds are (1) the prevailing party procured the award by corruption, fraud,
or other undue means; (2) corruption existed in the arbitrator; (3) a neutral arbitrator’s
misconduct substantially prejudiced a party’s rights; (4) the arbitrator exceeded his or her
power and the award cannot be corrected without affecting its merits; (5) the arbitrator
substantially prejudiced a party’s rights by refusing to postpone the hearing despite good
cause or by refusing to hear evidence material to the controversy; and (6) the arbitrator
failed to make mandatory disclosures or failed to disqualify himself when required. (§
1286.2, subd. (a).)
We review a trial court’s decision to vacate or confirm an arbitration award de novo, “but
apply the substantial evidence standard to the extent the trial court’s ruling rests upon a
determination of disputed factual issues.” (Burlage v. Superior Court (2009) 178 Cal.App.
4th 524, 529 (Burlage).)
2. Gee Failed to Establish the Arbitrator Substantially Prejudiced His Rights by Limiting Him
to One Expert
Gee seeks to vacate the arbitration award based solely on the arbitrator’s ruling limiting
Gee to one expert on the standard of care for performing a thoracentesis. He cites section
1286.2, subdivision (a)(5), which requires a court to vacate an arbitration award when “[t]he
rights of [a] party were substantially prejudiced by . . . the refusal of the arbitrators to hear
evidence material to the controversy . . . .” (§ 1286.2, subd. (a)(5).)
A challenge under section 1286.2, subdivision (a)(5), “could be made in virtually every case
where the arbitrator has excluded some evidence . . . . Plainly, this type of attack on the
arbitrator’s decision, if not properly limited, could swallow the rule that arbitration awards
are generally not reviewable on the merits.” (Schlessinger v. Rosenfeld, Meyer & Susman
(1995) 40 Cal.App.4th 1096, 1110 (Schlesseinger).) Accordingly, courts interpret section
1286.2, subdivision (a)(5), “as a safety valve in private arbitration that permits a court to
intercede when an arbitrator has prevented a party from fairly presenting its case.” (Hall v.
Superior Court (1993) 18 Cal.App.4th 427, 439 (Hall).) It does not apply in every instance
where an arbitrator erroneously excludes evidence. (Id. at p. 438.)
To vacate an arbitration award on this ground, a party must show the arbitrator’s
evidentiary ruling “substantially prejudiced [the] party’s ability to present material evidence
in support of its case.” (Schlessinger, supra, 40 Cal.App.4th at p. 1110, original italics.)
Unless the party establishes both substantial prejudice and materiality, the arbitration
award must stand. (Hall, supra, 18 Cal.App.4th at p. 438.)
The reviewing court should analyze the prejudice caused by excluding the evidence before
considering the evidence’s materiality. (Hall, supra, 18 Cal.App.4th at p. 439.) Materiality
often requires a court to review the arbitrator’s reasoning for excluding the evidence and
therefore would allow courts to review an arbitrator’s reasoning in any case in which the
losing party contends the arbitrator excluded material evidence. By first determining
whether excluding the evidence substantially prejudiced a party’s rights, materiality is
considered only in those cases in which substantial prejudice is shown. (Id. at p. 438.)
Analyzing the challenge in that sequence prevents a party from using section 1286.2,
subdivision (a)(5), to avoid the general rule prohibiting appellate courts from reviewing an
arbitrator’s decision for errors of fact or law. (Hall, at pp. 438‑439.)
In Hall, the plaintiffs sued two real estate agents who helped sell the plaintiffs’ home. One
agent acted as the listing agent while the second referred the plaintiffs to the first agent
and provided assistance in marketing the property. The plaintiffs sought to hold the second
agent vicariously liable for the first agent’s malfeasance on the theory the agents formed a
partnership when they agreed to share the commission for selling the plaintiffs’ home. (Hall,
supra, 18 Cal.App.4th at pp. 430‑431.) At the arbitration hearing, the second agent
presented no evidence addressing the plaintiffs’ partnership theory, but later asked the
arbitrator to reopen the hearing to allow the agent to present evidence on that issue. The
arbitrator denied the request and made an award in the plaintiffs’ favor, holding the second
agent liable for the first agent’s malfeasance based on the partnership theory. The trial
court vacated the arbitration award based on the arbitrator’s refusal to reopen the hearing.
(Id. at pp. 431‑432.)
The Court of Appeal reversed because the second agent failed to show the arbitrator’s
refusal to reopen the hearing substantially prejudiced his rights. Before denying the second
agent’s request to reopen the hearing, the arbitrator heard the agent’s offer of proof and
explained the additional evidence would not change his ruling. As the Hall court explained,
“The arbitrator did not prevent [the second agent] from fairly presenting his defense.
Instead, the arbitrator concluded that [the agent’s] defense, even with the proffered
evidence, lacked merit.” (Hall, supra, 18 Cal.App.4th at p. 439.) Because the arbitrator’s
refusal to reopen the hearing did not substantially prejudice the second agent’s ability to
fairly present his case, the trial court erred in vacating the award, even assuming the
excluded evidence was material. (Id. at pp. 438-439.)
In contrast, Burlage demonstrates that a party suffers substantial prejudice when an
arbitrator excludes all relevant evidence on a material issue. In Burlage, the plaintiffs
purchased a home from the defendant and later sued upon discovering their swimming pool
and fence encroached on an adjacent country club. During the litigation, a title insurance
company paid the country club approximately $11,000 for a lot-line adjustment that gave
the plaintiffs clear title to the encroaching property. Nonetheless, the plaintiffs continued to
seek damages for the encroachment based on the alleged diminution of their property’s
value and the cost of moving the pool and fence. The arbitrator granted the plaintiffs’ in
limine motion to exclude all evidence regarding the lot-line adjustment because the
arbitrator concluded damages must be measured from the date escrow closed. The
arbitrator ultimately awarded the plaintiffs approximately $1.5 million in damages. The trial
court vacated the arbitrator’s award and the Court of Appeal affirmed. (Burlage, supra, 178
Cal.App.4th at pp. 527-528.)
The Burlage court concluded the arbitrator substantially prejudiced the defendant’s rights
because the ruling excluding all evidence regarding the lot-line adjustment prevented the
defendant from fairly presenting his defense, specifically, the defendant’s ability to dispute
the amount of the plaintiffs’ damages. The ruling allowed the plaintiffs to offer expert
testimony regarding the diminution in the value of their property and the cost to move the
pool and fence, but barred the defendant from offering evidence showing the title company
“fixed” the encroachment and therefore the plaintiffs did not suffer the damages they
claimed. As the Burlage court explained, “it is self‑evident [the arbitrator’s] ruling excluding
evidence that the title company solved the problem through a modest payment to the
country club was more than a mere erroneous evidentiary ruling. . . . [¶] . . . [¶] Without this
crucial evidence, the arbitration assumed the nature of a default hearing in which the
[plaintiffs] were awarded $1.5 million in compensatory and punitive damages they may not
have suffered.” (Burlage, supra, 178 Cal.App.4th at p. 530.) The Burlage court also
concluded the lot‑line adjustment evidence was material: “What could be more material
than evidence the problem was ‘fixed’ and there are no damages” (Ibid.)
Here, the Hall case applies because Gee failed to show the arbitrator’s ruling regarding his
experts prevented him from fairly presenting his case. Gee contends the arbitrator denied
him the opportunity to present his case because he planned to offer expert testimony by
both Kamangar and Light. In Gee’s view, “the arbitrator refused to hear half his case.” Gee,
however, does not properly frame the prejudice issue and fails to support his conclusion
both experts were necessary to fairly present his case.
The issue is not whether the arbitrator prevented Gee from fairly presenting his case by
refusing to hear Kamangar’s testimony because the arbitrator never ruled Gee could not
offer Kamangar’s testimony. Instead, the arbitrator ruled Gee could not offer two
pulmonology experts on the standard of care because Gee failed to show the two experts’
testimony would not be duplicative. Accordingly, the issue is whether the arbitrator
prevented Gee from fairly presenting his case by limiting Gee to one pulmonology expert on
the standard of care for performing a thoracentesis.
The arbitrator allowed Gee to decide which expert he would use at the arbitration hearing
and Gee chose to offer Light’s videotaped deposition instead of calling Kamangar to testify
in-person. Because the arbitrator did not exclude any particular expert, it is not enough for
Gee to show he desired testimony from the expert who did not testify. Instead, Gee must
show he needed Kamangar’s and Light’s testimony to fairly present his case.
Gee points to deposition testimony showing both Kamangar and Light opined that Chan
breached the standard of care by (1) performing the two thoracenteses at locations too low
on Gee’s back; (2) failing to use ultrasound or CT scan equipment to locate the fluid in Gee’
s chest before performing the thoracenteses; and (3) failing to test the fluid sample from
the first thoracentesis before performing the second. Gee also points to deposition
testimony showing Kamangar could have provided the causation testimony the arbitrator
found lacking and identified an additional breach of the standard of care that Light did not
address.
Gee, however, provides no specific reason why he needed Light’s testimony to fairly
present his case. According to Gee, he chose to offer Light’s testimony at the arbitration
hearing because Light is “the world’s preeminent authority on pleural diseases.” Light’s
preeminence, however, does not establish Gee needed Light’s testimony. The briefs Gee
submitted to the arbitrator conceded Light’s testimony merely “corroborate[d]” Kamangar’s
testimony and Kamangar was Gee’s “primary expert.” Light’s testimony corroborating or
adding weight to Kamangar’s testimony may make Light’s testimony helpful to Gee’s case,
but it does not make it necessary for Gee to fairly present his case.[1]
Without showing he needed Light’s testimony to fairly present his case, Gee cannot
establish the arbitrator’s ruling limiting him to one expert substantially prejudiced his rights.
Gee’s decision to offer testimony from the expert who did not express all the opinions he
intended to rely on does not show the arbitrator substantially prejudiced Gee’s rights by
limiting him to one expert. The record shows Gee had an expert who could provide the
necessary testimony, but Gee chose to have a different expert testify. We conclude the trial
court properly denied Gee’s petition to vacate the arbitration award.
Gee explains he offered two standard-of-care experts because Kaiser and Chan
“presented two expert pulmonologists.” Gee, however, acknowledges that one of these
“expert pulmonologists” was Chan, that is, the party Gee alleged committed malpractice.
The record does not reflect whether Chan offered any expert opinions regarding the
standard of care or causation during the arbitration. The parties do not include their expert
designations in the record either, but Chan’s deposition transcript reveals his counsel
informed Gee’s counsel that “[Chan is] not a designated expert. He won’t be who we
designate to testify.” Generally, a witness, including a party, may not offer expert testimony
unless properly designated to do so. (§§ 2034.260, subd. (b)(1), 2034.210, 2034.300.)
Accordingly, the record does not support Gee’s contention he needed two standard-of-care
experts because Kaiser and Chan had two standard-of-care experts. Moreover, an
arbitration does not turn on the number of experts presented. Rather, when the facts are
undisputed, the outcome turns on whose expert is more credible and persuasive.
Gee also argues this case is analogous to Burlage because both cases involved an
arbitrator’s ruling excluding evidence on a dispositive fact. That argument, however,
misconstrues Burlage and the arbitrator’s decision in this case. In Burlage, the court found
the arbitrator substantially prejudiced the defendant’s rights because the arbitrator
prevented the defendant from offering any evidence to show the title company “fixed” the
encroachment and the plaintiffs therefore did not suffer the damages they sought.
(Burlage, supra, 178 Cal.App.4th at pp. 529-530.) As the Burlage court explained, the
arbitrator’s ruling prevented the defendant from disputing the plaintiffs’ damages. (Id. at p.
531.) Here, the arbitrator did not prevent Gee from showing Chan breached the standard of
care. The arbitrator allowed Gee to present expert testimony regarding the standard of
care and did not limit the opinions Gee’s expert could express. Rather, the arbitrator merely
limited the number of experts Gee could present on the standard of care.[2]
Finally, Gee argues the arbitrator’s ruling constituted substantial prejudice because the
arbitrator found his expert’s testimony unpersuasive. According to Gee, the arbitrator may
have reached a different result if he had allowed Kamangar to testify. But the arbitrator did
not bar Kamangar from testifying. Rather, Gee chose to offer Light’s testimony instead of
his primary expert, Kamangar. Whether the trier of fact finds a party’s expert unpersuasive
is a risk every party runs. It does not mean, however, the party has a right to present an
additional expert to bolster the first expert’s testimony.
Our conclusion Gee failed to establish substantial prejudice eliminates the need to address
Gee’s argument that no legal authority allowed the arbitrator to limit Gee to one standard-of-
care expert. As stated above, Gee’s failure to show the arbitrator’s ruling substantially
prejudiced his rights renders moot our consideration of whether the excluded evidence was
material or whether the arbitrator erred in excluding the evidence. Finally, we note the
arbitrator here could have, and perhaps should have, heard both Gee’s experts because
the additional testimony would not have significantly lengthened the proceedings or
increased the costs. But Gee’s argument fails to recognize arbitrators have “broad
discretion in conducting the hearing and ruling on admission of evidence” and they are “not
required to follow the rules of evidence and procedure.” (Evans v. Centerstone
Development Co. (2005) 134 Cal.App.4th 151, 164; § 1282.2, subds. (c) & (d).)
III
Disposition
The judgment is affirmed. Kaiser and Chan shall recover their costs on appeal.
_
ARONSON, J.
WE CONCUR:
_
BEDSWORTH, ACTING P. J.
_
MOORE, J.
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[1] Gee cites our decision in Burton v. Cruise (2010) 190 Cal.App.4th 939, for the
proposition “a party can suffer prejudice from an act that frustrates his counsel’s strategy
for presenting evidence.” In Burton we addressed whether a party’s significant delay in
seeking to compel arbitration prejudiced the opposition’s case because the opposition
selected its experts based on the assumption the case would be tried to a jury, not a panel
of arbitrators. (Id. at pp. 949-951.) Here, we address whether an arbitrator’s ruling limiting a
party to one expert prejudiced the party’s ability to fairly present his case. The type of
prejudice caused to an opponent’s case by delaying a petition to compel arbitration is not
analogous to the prejudice caused by an arbitrator excluding evidence. Burton does not
apply in this case.
[2] Gee cites three out-of-state cases for the proposition that an arbitration award must be
vacated when the arbitrator excludes expert testimony the losing party sought to offer. (See
Smaligo v. Fireman’s Fund Ins. Co. (1968) 432 Pa. 133, 138; Bordonaro v. Merrill Lynch,
Pierce, Fenner & Smith (2004) 156 Ohio App.3d 358, 367; Wilde v. O’Leary (2005) 374 N.J.
Super. 582, 587.) These cases are readily distinguishable for the same reason as Burlage
— that is, they involve arbitrator rulings that excluded all expert testimony a party sought to
offer on an issue as opposed to an arbitrator’s ruling merely limiting the number of experts
a party offered covering the same issues. (Ibid.)
FearNotLaw.com
"In selecting the placement for the second thoracentesis, Chan did not review the X-
rays or CT scans, nor did he use ultrasound or CT scan equipment to assist him in
locating the fluid in Gee’s chest. Rather, Chan inserted a new catheter needle at a
location slightly higher and more lateral than the first insertion, but was unable to
draw any fluid from Gee’s chest.
"In performing one or both of the thoracenteses, Chan lacerated Gee’s spleen, which
required Gee to undergo emergency surgery to remove his spleen. Surgeons
performed three additional surgeries to close Gee’s abdomen and later repair his
abdominal wall. All told, Gee spent a total of 45 days in the hospital, including one
week in intensive care."
Filed 11/3/11 Gee v. South. Cal. Permanente Med. Group CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRIAN T. GEE,
Plaintiff and Appellant,
v.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP et al.,
Defendants and Respondents.
G043985 (Super. Ct. No. 30-2008-00108173)
Appeal from a judgment of the Superior Court of Orange County, Luis A. Rodriguez, Judge. Affirmed.
Sam Walker for Plaintiff and Appellant.
Arnold & Porter, Lawrence A. Cox, Brian K. Condon; Reback, McAndrews, Kjar, Warford & Stockalper and
Terrence J. Schafer for Defendants and Respondents.
* * *
Plaintiff Brian T. Gee appeals from an order denying his petition to vacate an arbitration award in favor of
defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Inc., Kaiser
Foundation Hospitals (collectively, Kaiser) and Joseph Chan, M.D. (Chan).
Gee sought to vacate the award on his medical malpractice claim on the ground the arbitrator erroneously
excluded material evidence. The arbitrator limited Gee to one expert on the standard of care because Gee
failed to show the testimony of his two designated standard-of-care experts would not be duplicative. Gee
argued this ruling destroyed his evidentiary presentation because he based his case on using both
experts.
Gee’s appeal is premature because an appeal lies from the judgment confirming the arbitration award,
not from an order denying a petition to vacate the arbitration award, and the trial court did not confirm the
arbitration award or enter judgment. Nonetheless, we exercise our discretion to hear Gee’s appeal
because the trial court should have confirmed the award and entered judgment when it denied Gee’s
petition. Dismissing the appeal would only unnecessarily delay resolution of this case and needlessly
consume both judicial and private resources.
On the merits, we affirm the trial court’s decision denying Gee’s petition. Gee failed to show that the
arbitrator’s ruling limiting him to one expert substantially prejudiced his ability to fairly present his case by
excluding material evidence. (See Code Civ. Proc., § 1286.2, subd. (a)(5); all statutory references are to
the Code of Civil Procedure unless otherwise noted.) Accordingly, we affirm the judgment.
I
Facts and Procedural History
Kaiser admitted Gee to one of its hospitals and its doctors diagnosed him with severe
pancreatitis. X-rays and CT scans revealed Gee also suffered from pleural effusion, or fluid
in the chest cavity surrounding the lungs. Gee’s attending physician asked Chan to
evaluate whether Gee required a bedside thoracentesis to test for infection. To perform a
thoracentesis, a physician inserts a needle into the patient’s back between two ribs and into
the chest cavity surrounding the lungs. The physician then draws a small amount of fluid
from the cavity that is tested for infection. The procedure also may be used to drain fluid
from the chest cavity.
Chan reviewed Gee’s X-rays and CT scans to determine the volume and location of the
fluid in Gee’s chest, and physically examined Gee to confirm the fluid’s location. The
examination included a percussion test in which Chan repeatedly thumped on Gee’s back
at different locations and listened for changes in the sound. Based on the X-rays, CT
scans, and physical examination, Chan selected the space between Gee’s 10th and 11th
ribs to perform the thoracentesis. Chan inserted a catheter needle at that location, but
could not draw any more than two cubic centimeters of bloody fluid from Gee’s chest.
Chan decided not to send the fluid he initially drew for testing. Instead, Chan performed a
second thoracentesis to try and draw more fluid from a different location.
In selecting the placement for the second thoracentesis, Chan did not review the
X-rays or CT scans, nor did he use ultrasound or CT scan equipment to assist him
in locating the fluid in Gee’s chest. Rather, Chan inserted a new catheter needle
at a location slightly higher and more lateral than the first insertion, but was
unable to draw any fluid from Gee’s chest.
In performing one or both of the thoracenteses, Chan lacerated Gee’s spleen,
which required Gee to undergo emergency surgery to remove his spleen.
Surgeons performed three additional surgeries to close Gee’s abdomen and later
repair his abdominal wall. All told, Gee spent a total of 45 days in the hospital,
including one week in intensive care.
Gee filed a medical malpractice action against Kaiser and Chan and the parties stipulated
to submit Gee’s claim to binding arbitration. Gee designated Drs. Richard W. Light and
Nader Kamangar as his expert witnesses regarding the standard of care for performing a
thoracentesis. Upon receiving Gee’s expert designation, Kaiser and Chan requested that
Gee withdraw one of these experts because they covered the same subject matter. Gee
declined, explaining that Light and Kamangar’s testimony would not be duplicative.
Light is a pulmonologist from Vanderbilt University School of Medicine whom Gee touted as
the preeminent authority and author of the leading treatise on pleural diseases.
During his videotaped deposition, Light acknowledged he last performed a thoracentesis
approximately 25 years ago, but continued to instruct other physicians on pleural diseases.
Light testified Chan breached the standard of care by (1) performing the first
thoracentesis at a location too low on Gee’s back and failing to use an ultrasound or a CT
scan to confirm the location of the fluid; (2) failing to send the fluid sample from the first
thoracentesis for testing before performing a second thoracentesis; and (3) performing the
second thoracentesis at a location lateral to the first location, but not much higher on Gee’s
back. Light also testified the percussion method Chan used to determine the fluid’s location
during Gee’s physical examination may fall within the standard of care, puncturing the
spleen is a common complication for the thoracentesis procedure, and a small needle can
puncture the spleen without causing complications.
Kamangar is a pulmonologist from Olive View-UCLA Medical Center who regularly performs
thoracenteses and instructs medical students and fellows on how to perform the procedure.
During his deposition, Kamangar testified Chan breached the standard of care by (1)
performing both thoracenteses at locations too low on Gee’s back; (2) using a large
catheter needle rather than a smaller needle when the purpose for the thoracenteses was
to draw a sample for testing rather than drain the fluid; (3) performing the second
thoracentesis without testing the sample from the first thoracentesis; and (4) failing to use
ultrasound or CT scan equipment to determine the location for the two thoracenteses.
Finally, Kamangar opined that Chan caused Gee’s injuries by lacerating his spleen during
one or both of the procedures.
After deposing Light and Kamangar, Kaiser and Chan again requested that Gee withdraw
one of his experts because their deposition testimony regarding the standard of care was
duplicative. Gee refused and Kaiser and Chan moved in limine to exclude either Light or
Kamangar from testifying at the arbitration hearing.
Gee opposed the motion, explaining Kamangar was his “primary expert,” but “Dr. Light
corroborates Dr. Kamangar’s opinion about Dr. Chan’s breach of the standard of care.
Contrary to [Kaiser and Chan’s] declaration, however, his testimony and Dr. Kamangar’s
are not duplicative. [Gee] offers [Light’s] videotaped deposition as additional evidence that
will be helpful to the fact finder.” Gee further explained he intended to show Light’s 42-
minute videotaped deposition at the arbitration and then call Kamangar to testify in-person.
Gee’s written opposition failed to identify any specific differences between Light and
Kamangar’s testimony. At the hearing on the in limine motion, Gee argued the two
physicians “would provide a different perspective on the issues” and “Dr. Kamangar would
voice a strong opinion about the needle used by Dr. Chan, a point Dr. Light had not
addressed.”
The arbitrator granted the motion, explaining Gee failed to show how Light’s and Kamangar’
s testimony regarding the standard of care would not be duplicative. The arbitrator’s ruling
allowed Gee to decide which expert he would call at the arbitration hearing. Gee elected to
show Light’s videotaped deposition rather than call Kamangar to testify in-person. Kaiser
called its own expert to testify regarding the standard of care and Chan also testified he did
not breach the standard of care.
After hearing all evidence, the arbitrator issued a decision in Kaiser and Chan’s favor
based on the findings that Gee failed to show Chan breached the standard of care and
also failed to offer any evidence of causation. The arbitrator explained that he accepted
Light’s videotaped testimony as an expert, but found it “to be vague, contradictory and of
little or no value in determining the issues.” With respect to the standard of care, the
arbitrator explained that all expert testimony acknowledged thoracentesis fell within the
standard of care as an appropriate procedure to use in addressing Gee’s pleural effusion,
and Light’s opinion that in retrospect another method for performing the thoracentesis may
have been preferable did not establish Chan breached the standard of care.
Gee petitioned the trial court to vacate the arbitrator’s decision on the ground the arbitrator
substantially prejudiced Gee’s rights by refusing to hear material evidence, namely,
Kamangar’s testimony. After reviewing the transcripts from Light’s and Kamangar’s
depositions, the trial court issued an order denying Gee’s petition. The trial court, however,
did not confirm the arbitrator’s decision and therefore did not enter judgment for Kaiser and
Chan. Gee appealed from the “Order Denying Petition to Vacate Arbitration Award — CCP
section 1294.”
II
Discussion
A. This Court Exercises Its Discretion to Decide Gee’s Premature Appeal
A threshold issue we must address is whether this court has jurisdiction to consider Gee’s
appeal from the trial court’s order denying his petition to vacate the arbitration award. “[T]
he right of appeal is wholly statutory . . . .” (Powers v. City of Richmond (1995) 10 Cal.4th
85, 109.) Section 1294 authorizes an aggrieved party to appeal from an order dismissing a
petition to vacate an arbitration award and also from a judgment confirming an arbitration
award. (§ 1294, subds. (b) & (d).) Section 1294, however, does not authorize an appeal
from an order denying a petition to vacate an arbitration award. (Mid-Wilshire Associates v.
O’Leary (1992) 7 Cal.App.4th 1450, 1454 (Mid-Wilshire) [appeal dismissed because an
order denying a motion to vacate an arbitration award is not an appealable order].)
Here, the trial court entered an order denying Gee’s petition to vacate the arbitration
award, but did not dismiss the petition or enter a judgment confirming the arbitration award.
Accordingly, there is no appealable order or judgment supporting this appeal.
Our analysis, however, does not end there because the Code of Civil Procedure required
the trial court to confirm the arbitration award and enter judgment once the court denied
Gee’s petition to vacate the award. (Law Offices of David S. Karton v. Segreto (2009) 176
Cal.App.4th 1, 8-9 (Segreto).) Section 1286 states, “If a petition or response under this
chapter is duly served and filed, the court shall confirm the award as made, . . . unless in
accordance with this chapter it corrects the award and confirms it as corrected, vacates the
award or dismisses the proceeding.” (§ 1286.)
Section 1286 therefore gave the trial court four options once Gee filed his petition to
vacate: It could “‘(1) confirm the award, (2) correct the award and confirm it as corrected,
(3) vacate the award, or (4) dismiss the proceedings.’ [Citation.]” (Segreto, supra, 176 Cal.
App.4th at p. 8.) In other words, “‘the court must confirm the award, unless it either vacates
or corrects it. [Citation.]’ [Citation.]” (Ibid., original italics.) Moreover, once a trial court
confirms an arbitration award, section 1287.4 requires the court to enter judgment in
conformity with the award. (Segreto, at p. 9; § 1287.4 [“If an award is confirmed, judgment
shall be entered in conformity therewith”].)
This statutory framework explains why section 1294 does not authorize an appeal from an
order denying a petition to vacate an arbitration award. If the trial court denies a petition to
vacate, the court must confirm the award and enter judgment in conformity therewith.
(Segreto, supra, 176 Cal.App.4th at p. 9.) An appeal lies from that judgment and the
unsuccessful party on the petition to vacate may challenge that ruling when appealing from
the judgment. (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
These authorities render Gee’s appeal premature in the same way as an appeal from an
order sustaining a demurrer without leave to amend or an order granting summary
judgment. In both instances the appeal lies from the judgment entered after the order
sustaining the demurrer or granting summary judgment, not from the underlying order.
(Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396 [“An order
sustaining a demurrer without leave to amend is not appealable, and an appeal is proper
only after entry of a dismissal on such an order”]; Kasparian v. AvalonBay Communities
(2007) 156 Cal.App.4th 11, 14, fn. 1 [“An appeal lies from the judgment, not from an order
granting a summary judgment motion”].)
Because Gee prematurely appealed from the order denying his petition to vacate the
arbitration award rather than the judgment confirming the award, we could dismiss the
appeal for want of appellate jurisdiction. (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
Doing so, however, would result only in a remand to the trial court for it to enter judgment
followed by Gee filing a second appeal raising the same challenges presented on this
appeal.
California Rules of Court, rule 8.104(d)(2) grants appellate courts the discretion to hear a
premature appeal: “The reviewing court may treat a notice of appeal filed after the superior
court has announced its intended ruling, but before it has rendered judgment, as filed
immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).) In numerous
cases, appellate courts have exercised the discretion to hear premature appeals from
orders sustaining demurrers or granting summary judgment by construing the orders as
judgments. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527-528, fn. 1 [treating order
sustaining demurrer as an appealable order]; Levy v. Skywalker Sound (2003) 108 Cal.App.
4th 753, 761, fn. 7 [construing order granting summary judgment as incorporating
appealable judgment].)
To avoid further delay and to conserve both judicial and private resources, we exercise our
discretion under California Rules of Court, rule 8.104(d)(2) and construe the order denying
Gee’s petition to vacate the arbitrator’s award as a judgment confirming the award. We
proceed to decide Gee’s appeal on the merits.
B. Gee Failed to Establish a Basis for Vacating the Arbitration Award
1. Limited Judicial Review of an Arbitration Award
“[T]he Legislature has expressed a ‘strong public policy in favor of arbitration as a speedy
and relatively inexpensive means of dispute resolution.’ [Citations.]” (Moncharsh v. Heily &
Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) In furtherance of that policy, courts “‘“indulge
every intendment to give effect to such proceedings.”’” (Ibid.)
“[I]t is the general rule that parties to a private arbitration impliedly agree that the arbitrator’
s decision will be both binding and final.” (Moncharsh, supra, 3 Cal.4th at p. 9.) To carry out
the parties’ intent that arbitration provide a quick and final resolution to their dispute,
judicial intervention in the arbitration process is kept to a minimum. “The arbitrator’s
decision should be the end, not the beginning, of the dispute.” (Id. at p. 10.)
Consequently, the merits of the parties’ dispute generally are not subject to judicial review.
(Moncharsh, supra, 3 Cal.4th at p. 11.) Indeed, courts will not review an arbitrator’s
decision for errors of fact or law, including any errors in the arbitrator’s reasoning and the
sufficiency of the evidence supporting the arbitrator’s award. (Ibid.) Even “an error of law
apparent on the face of the award that causes substantial injustice does not provide
grounds for judicial review.” (Id. at p. 33.) By voluntarily submitting their dispute to
arbitration, the parties assume the risk the arbitrator may make a mistake. (Ibid.)
To ensure overall fairness in the arbitral process and to guard against serious errors in the
award itself, the Legislature authorizes limited judicial review of arbitration awards.
(Moncharsh, supra, 3 Cal.4th at p. 12.) Courts may vacate an arbitration award only on the
grounds identified in section 1286.2. (Haworth v. Superior Court (2010) 50 Cal.4th 372,
387.) Those grounds are (1) the prevailing party procured the award by corruption, fraud,
or other undue means; (2) corruption existed in the arbitrator; (3) a neutral arbitrator’s
misconduct substantially prejudiced a party’s rights; (4) the arbitrator exceeded his or her
power and the award cannot be corrected without affecting its merits; (5) the arbitrator
substantially prejudiced a party’s rights by refusing to postpone the hearing despite good
cause or by refusing to hear evidence material to the controversy; and (6) the arbitrator
failed to make mandatory disclosures or failed to disqualify himself when required. (§
1286.2, subd. (a).)
We review a trial court’s decision to vacate or confirm an arbitration award de novo, “but
apply the substantial evidence standard to the extent the trial court’s ruling rests upon a
determination of disputed factual issues.” (Burlage v. Superior Court (2009) 178 Cal.App.
4th 524, 529 (Burlage).)
2. Gee Failed to Establish the Arbitrator Substantially Prejudiced His Rights by Limiting Him
to One Expert
Gee seeks to vacate the arbitration award based solely on the arbitrator’s ruling limiting
Gee to one expert on the standard of care for performing a thoracentesis. He cites section
1286.2, subdivision (a)(5), which requires a court to vacate an arbitration award when “[t]he
rights of [a] party were substantially prejudiced by . . . the refusal of the arbitrators to hear
evidence material to the controversy . . . .” (§ 1286.2, subd. (a)(5).)
A challenge under section 1286.2, subdivision (a)(5), “could be made in virtually every case
where the arbitrator has excluded some evidence . . . . Plainly, this type of attack on the
arbitrator’s decision, if not properly limited, could swallow the rule that arbitration awards
are generally not reviewable on the merits.” (Schlessinger v. Rosenfeld, Meyer & Susman
(1995) 40 Cal.App.4th 1096, 1110 (Schlesseinger).) Accordingly, courts interpret section
1286.2, subdivision (a)(5), “as a safety valve in private arbitration that permits a court to
intercede when an arbitrator has prevented a party from fairly presenting its case.” (Hall v.
Superior Court (1993) 18 Cal.App.4th 427, 439 (Hall).) It does not apply in every instance
where an arbitrator erroneously excludes evidence. (Id. at p. 438.)
To vacate an arbitration award on this ground, a party must show the arbitrator’s
evidentiary ruling “substantially prejudiced [the] party’s ability to present material evidence
in support of its case.” (Schlessinger, supra, 40 Cal.App.4th at p. 1110, original italics.)
Unless the party establishes both substantial prejudice and materiality, the arbitration
award must stand. (Hall, supra, 18 Cal.App.4th at p. 438.)
The reviewing court should analyze the prejudice caused by excluding the evidence before
considering the evidence’s materiality. (Hall, supra, 18 Cal.App.4th at p. 439.) Materiality
often requires a court to review the arbitrator’s reasoning for excluding the evidence and
therefore would allow courts to review an arbitrator’s reasoning in any case in which the
losing party contends the arbitrator excluded material evidence. By first determining
whether excluding the evidence substantially prejudiced a party’s rights, materiality is
considered only in those cases in which substantial prejudice is shown. (Id. at p. 438.)
Analyzing the challenge in that sequence prevents a party from using section 1286.2,
subdivision (a)(5), to avoid the general rule prohibiting appellate courts from reviewing an
arbitrator’s decision for errors of fact or law. (Hall, at pp. 438‑439.)
In Hall, the plaintiffs sued two real estate agents who helped sell the plaintiffs’ home. One
agent acted as the listing agent while the second referred the plaintiffs to the first agent
and provided assistance in marketing the property. The plaintiffs sought to hold the second
agent vicariously liable for the first agent’s malfeasance on the theory the agents formed a
partnership when they agreed to share the commission for selling the plaintiffs’ home. (Hall,
supra, 18 Cal.App.4th at pp. 430‑431.) At the arbitration hearing, the second agent
presented no evidence addressing the plaintiffs’ partnership theory, but later asked the
arbitrator to reopen the hearing to allow the agent to present evidence on that issue. The
arbitrator denied the request and made an award in the plaintiffs’ favor, holding the second
agent liable for the first agent’s malfeasance based on the partnership theory. The trial
court vacated the arbitration award based on the arbitrator’s refusal to reopen the hearing.
(Id. at pp. 431‑432.)
The Court of Appeal reversed because the second agent failed to show the arbitrator’s
refusal to reopen the hearing substantially prejudiced his rights. Before denying the second
agent’s request to reopen the hearing, the arbitrator heard the agent’s offer of proof and
explained the additional evidence would not change his ruling. As the Hall court explained,
“The arbitrator did not prevent [the second agent] from fairly presenting his defense.
Instead, the arbitrator concluded that [the agent’s] defense, even with the proffered
evidence, lacked merit.” (Hall, supra, 18 Cal.App.4th at p. 439.) Because the arbitrator’s
refusal to reopen the hearing did not substantially prejudice the second agent’s ability to
fairly present his case, the trial court erred in vacating the award, even assuming the
excluded evidence was material. (Id. at pp. 438-439.)
In contrast, Burlage demonstrates that a party suffers substantial prejudice when an
arbitrator excludes all relevant evidence on a material issue. In Burlage, the plaintiffs
purchased a home from the defendant and later sued upon discovering their swimming pool
and fence encroached on an adjacent country club. During the litigation, a title insurance
company paid the country club approximately $11,000 for a lot-line adjustment that gave
the plaintiffs clear title to the encroaching property. Nonetheless, the plaintiffs continued to
seek damages for the encroachment based on the alleged diminution of their property’s
value and the cost of moving the pool and fence. The arbitrator granted the plaintiffs’ in
limine motion to exclude all evidence regarding the lot-line adjustment because the
arbitrator concluded damages must be measured from the date escrow closed. The
arbitrator ultimately awarded the plaintiffs approximately $1.5 million in damages. The trial
court vacated the arbitrator’s award and the Court of Appeal affirmed. (Burlage, supra, 178
Cal.App.4th at pp. 527-528.)
The Burlage court concluded the arbitrator substantially prejudiced the defendant’s rights
because the ruling excluding all evidence regarding the lot-line adjustment prevented the
defendant from fairly presenting his defense, specifically, the defendant’s ability to dispute
the amount of the plaintiffs’ damages. The ruling allowed the plaintiffs to offer expert
testimony regarding the diminution in the value of their property and the cost to move the
pool and fence, but barred the defendant from offering evidence showing the title company
“fixed” the encroachment and therefore the plaintiffs did not suffer the damages they
claimed. As the Burlage court explained, “it is self‑evident [the arbitrator’s] ruling excluding
evidence that the title company solved the problem through a modest payment to the
country club was more than a mere erroneous evidentiary ruling. . . . [¶] . . . [¶] Without this
crucial evidence, the arbitration assumed the nature of a default hearing in which the
[plaintiffs] were awarded $1.5 million in compensatory and punitive damages they may not
have suffered.” (Burlage, supra, 178 Cal.App.4th at p. 530.) The Burlage court also
concluded the lot‑line adjustment evidence was material: “What could be more material
than evidence the problem was ‘fixed’ and there are no damages” (Ibid.)
Here, the Hall case applies because Gee failed to show the arbitrator’s ruling regarding his
experts prevented him from fairly presenting his case. Gee contends the arbitrator denied
him the opportunity to present his case because he planned to offer expert testimony by
both Kamangar and Light. In Gee’s view, “the arbitrator refused to hear half his case.” Gee,
however, does not properly frame the prejudice issue and fails to support his conclusion
both experts were necessary to fairly present his case.
The issue is not whether the arbitrator prevented Gee from fairly presenting his case by
refusing to hear Kamangar’s testimony because the arbitrator never ruled Gee could not
offer Kamangar’s testimony. Instead, the arbitrator ruled Gee could not offer two
pulmonology experts on the standard of care because Gee failed to show the two experts’
testimony would not be duplicative. Accordingly, the issue is whether the arbitrator
prevented Gee from fairly presenting his case by limiting Gee to one pulmonology expert on
the standard of care for performing a thoracentesis.
The arbitrator allowed Gee to decide which expert he would use at the arbitration hearing
and Gee chose to offer Light’s videotaped deposition instead of calling Kamangar to testify
in-person. Because the arbitrator did not exclude any particular expert, it is not enough for
Gee to show he desired testimony from the expert who did not testify. Instead, Gee must
show he needed Kamangar’s and Light’s testimony to fairly present his case.
Gee points to deposition testimony showing both Kamangar and Light opined that Chan
breached the standard of care by (1) performing the two thoracenteses at locations too low
on Gee’s back; (2) failing to use ultrasound or CT scan equipment to locate the fluid in Gee’
s chest before performing the thoracenteses; and (3) failing to test the fluid sample from
the first thoracentesis before performing the second. Gee also points to deposition
testimony showing Kamangar could have provided the causation testimony the arbitrator
found lacking and identified an additional breach of the standard of care that Light did not
address.
Gee, however, provides no specific reason why he needed Light’s testimony to fairly
present his case. According to Gee, he chose to offer Light’s testimony at the arbitration
hearing because Light is “the world’s preeminent authority on pleural diseases.” Light’s
preeminence, however, does not establish Gee needed Light’s testimony. The briefs Gee
submitted to the arbitrator conceded Light’s testimony merely “corroborate[d]” Kamangar’s
testimony and Kamangar was Gee’s “primary expert.” Light’s testimony corroborating or
adding weight to Kamangar’s testimony may make Light’s testimony helpful to Gee’s case,
but it does not make it necessary for Gee to fairly present his case.[1]
Without showing he needed Light’s testimony to fairly present his case, Gee cannot
establish the arbitrator’s ruling limiting him to one expert substantially prejudiced his rights.
Gee’s decision to offer testimony from the expert who did not express all the opinions he
intended to rely on does not show the arbitrator substantially prejudiced Gee’s rights by
limiting him to one expert. The record shows Gee had an expert who could provide the
necessary testimony, but Gee chose to have a different expert testify. We conclude the trial
court properly denied Gee’s petition to vacate the arbitration award.
Gee explains he offered two standard-of-care experts because Kaiser and Chan
“presented two expert pulmonologists.” Gee, however, acknowledges that one of these
“expert pulmonologists” was Chan, that is, the party Gee alleged committed malpractice.
The record does not reflect whether Chan offered any expert opinions regarding the
standard of care or causation during the arbitration. The parties do not include their expert
designations in the record either, but Chan’s deposition transcript reveals his counsel
informed Gee’s counsel that “[Chan is] not a designated expert. He won’t be who we
designate to testify.” Generally, a witness, including a party, may not offer expert testimony
unless properly designated to do so. (§§ 2034.260, subd. (b)(1), 2034.210, 2034.300.)
Accordingly, the record does not support Gee’s contention he needed two standard-of-care
experts because Kaiser and Chan had two standard-of-care experts. Moreover, an
arbitration does not turn on the number of experts presented. Rather, when the facts are
undisputed, the outcome turns on whose expert is more credible and persuasive.
Gee also argues this case is analogous to Burlage because both cases involved an
arbitrator’s ruling excluding evidence on a dispositive fact. That argument, however,
misconstrues Burlage and the arbitrator’s decision in this case. In Burlage, the court found
the arbitrator substantially prejudiced the defendant’s rights because the arbitrator
prevented the defendant from offering any evidence to show the title company “fixed” the
encroachment and the plaintiffs therefore did not suffer the damages they sought.
(Burlage, supra, 178 Cal.App.4th at pp. 529-530.) As the Burlage court explained, the
arbitrator’s ruling prevented the defendant from disputing the plaintiffs’ damages. (Id. at p.
531.) Here, the arbitrator did not prevent Gee from showing Chan breached the standard of
care. The arbitrator allowed Gee to present expert testimony regarding the standard of
care and did not limit the opinions Gee’s expert could express. Rather, the arbitrator merely
limited the number of experts Gee could present on the standard of care.[2]
Finally, Gee argues the arbitrator’s ruling constituted substantial prejudice because the
arbitrator found his expert’s testimony unpersuasive. According to Gee, the arbitrator may
have reached a different result if he had allowed Kamangar to testify. But the arbitrator did
not bar Kamangar from testifying. Rather, Gee chose to offer Light’s testimony instead of
his primary expert, Kamangar. Whether the trier of fact finds a party’s expert unpersuasive
is a risk every party runs. It does not mean, however, the party has a right to present an
additional expert to bolster the first expert’s testimony.
Our conclusion Gee failed to establish substantial prejudice eliminates the need to address
Gee’s argument that no legal authority allowed the arbitrator to limit Gee to one standard-of-
care expert. As stated above, Gee’s failure to show the arbitrator’s ruling substantially
prejudiced his rights renders moot our consideration of whether the excluded evidence was
material or whether the arbitrator erred in excluding the evidence. Finally, we note the
arbitrator here could have, and perhaps should have, heard both Gee’s experts because
the additional testimony would not have significantly lengthened the proceedings or
increased the costs. But Gee’s argument fails to recognize arbitrators have “broad
discretion in conducting the hearing and ruling on admission of evidence” and they are “not
required to follow the rules of evidence and procedure.” (Evans v. Centerstone
Development Co. (2005) 134 Cal.App.4th 151, 164; § 1282.2, subds. (c) & (d).)
III
Disposition
The judgment is affirmed. Kaiser and Chan shall recover their costs on appeal.
_
ARONSON, J.
WE CONCUR:
_
BEDSWORTH, ACTING P. J.
_
MOORE, J.
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[1] Gee cites our decision in Burton v. Cruise (2010) 190 Cal.App.4th 939, for the
proposition “a party can suffer prejudice from an act that frustrates his counsel’s strategy
for presenting evidence.” In Burton we addressed whether a party’s significant delay in
seeking to compel arbitration prejudiced the opposition’s case because the opposition
selected its experts based on the assumption the case would be tried to a jury, not a panel
of arbitrators. (Id. at pp. 949-951.) Here, we address whether an arbitrator’s ruling limiting a
party to one expert prejudiced the party’s ability to fairly present his case. The type of
prejudice caused to an opponent’s case by delaying a petition to compel arbitration is not
analogous to the prejudice caused by an arbitrator excluding evidence. Burton does not
apply in this case.
[2] Gee cites three out-of-state cases for the proposition that an arbitration award must be
vacated when the arbitrator excludes expert testimony the losing party sought to offer. (See
Smaligo v. Fireman’s Fund Ins. Co. (1968) 432 Pa. 133, 138; Bordonaro v. Merrill Lynch,
Pierce, Fenner & Smith (2004) 156 Ohio App.3d 358, 367; Wilde v. O’Leary (2005) 374 N.J.
Super. 582, 587.) These cases are readily distinguishable for the same reason as Burlage
— that is, they involve arbitrator rulings that excluded all expert testimony a party sought to
offer on an issue as opposed to an arbitrator’s ruling merely limiting the number of experts
a party offered covering the same issues. (Ibid.)
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