Pipher v. Loo (CA1 3/10/09)

An appeal based on evidentiary rulings is generally a loser. But not always.

Pipher sued his dentist for malpractice. The trial court excluded portions of his causation expert’s testimony and allowed in portions of the defendant’s expert’s that he objected to. He lost, then appealed the evidentiary rulings.

As to the defendant’s expert, the appellate court agreed with the trial court: the expert’s testimony could not be excluded on hearsay grounds merely because it was based in part on patient surveys.

As to the plaintiff’s expert, the defense had objected to portions of his testimony that referred to the standard of care; its argument was that another plaintiff’s expert had opined on the standard of care and only one standard-of-care expert is allowed. One portion seems, from the brief passage quoted in the opinion, to have mentioned the standard of care only in passing but the court concluded that its exclusion was not error.

The other portion was this:

Q: Do you have an opinion whether there would
have been permanent injury to Dr. Pipher’s
lingual nerve if the dentist administering the
anesthetic had followed the Arizona standard
of care as expressed?
. . . .
A: Yes, I do have an opinion.
Q: And what is your opinion?
. . . .
A: Yes. My opinion would be that – if the
standard of care had been followed, that the –
the precautions taken after it – it was numb,
that they had come in contact with – or he had
come in contact with the nerve, that there
would not have been severe damage to the
nerve, which did take place. And so the
standard of care was not met and this is what
resulted in the severe injury to – to this
nerve – to the lingual nerve on the right-hand
. . . .
Q: So if you’re going slowly, does that allow you
to touch the lingual nerve, cause the electric
shock and get out without damage?
. . . .
A: Yes.

If that testimony wasn’t intended to slip a standard-of-care opinion through, we’ll eat the transcript. But the court decided that the testimony should have been admitted because the expert had mentioned the standard “only as a predicate” to his causation opinion.

Well, maybe. Why does “only as a predicate” make an inadmissible opinion admissible? It can only be because, in the context of the rest of the testimony, the jury would understand that the witness was assuming the other testimony as the basis of his own rather than reaffirming it. That sort of call, though, is for the trial judge and  is to be respected absent an abuse of discretion. The opinion is weak on explaining why a disagreement about the tenor of the evidence rose to the level of abuse of discretion. The only clue the court gives is to mention that the quoted passage was the only opinion the causation expert gave about causation. Some testimony, apparently, is more equal than other testimony; the rules will be relaxed for the really important stuff.

The defense argued that the quoted testimony was also  inadmissible because it was without foundation, was speculative, and lacked an adequate basis under Rules 702 and 703. The appellate court disagreed. The disagreement was probably correct but the broad discretion to be given the trial court in such matters was, once again, not mentioned.