FYBEL, J.
Plaintiff Shaunai Smith appeals from a judgment entered in favor of her former employer, defendant County of Orange, after a jury rejected plaintiff's claim for disability discrimination. Plaintiff contends the trial court abused its discretion by denying her motion in limine seeking to exclude the admission of evidence regarding her lawsuit against the owner of the building where she worked for defendant. Plaintiff further contends the court erred by granting defendant's motions in limine, thereby precluding (1) three of plaintiff's coworkers from offering their lay opinion that contaminants in the building caused certain health problems, and (2) the expert opinion of defendant's physician, Dr. Ronald Wempen, that contaminants in the building caused plaintiff's health problems. Plaintiff argues the court also erred by admitting evidence of Dr. Wempen's prior record of discipline for his treatment of another patient.
We affirm. The trial court did not abuse its discretion in admitting evidence showing that plaintiff had previously sued the owner of the building where she worked for defendant. As we explain, evidence of the prior action was relevant and not unduly prejudicial.
The trial court did not err by precluding plaintiff's coworkers from testifying that contaminants in the building caused them certain health problems. Whether the type, concentration, and location of contaminants found in the building actually caused their health problems was a matter outside common experience and required an expert opinion. Dr. Wempen's expert opinion that contaminants in the building caused plaintiff's health problems was properly excluded because it lacked a proper foundation. Dr. Wempen admitted in his deposition that he never visited the building, reviewed any report of contaminants, or tested plaintiff for exposure to particular contaminants.
Even assuming the trial court erred by admitting evidence of Dr. Wempen's prior disciplinary record, any such error was harmless in light of the jury's special verdict finding plaintiff was unable to perform the essential functions of her position with or without reasonable accommodation. The jury could not have reached that finding unless it found Dr. Wempen's medical notes and restrictions credible. In light of the foregoing, plaintiff's contention of cumulative error is without merit.
Plaintiff was first employed by defendant as an office assistant in 1993. She became a child support officer about six years later. In 2002, plaintiff became a senior child support officer in defendant's department of child support services.
During plaintiff's employment, the department of child support services was housed in two buildings located at 1055 and 1015 North Main Street in Santa Ana.
In early 2005, plaintiff filed a grievance through her employees' union. She complained she suffered respiratory problems, severe fatigue, and eye irritation. Five other employees complained of respiratory difficulties. Defendant found fiberglass particles in the vents and found particulates and fibrous materials in the carpets, apparently caused by improperly taped vents.
Upon receiving plaintiff's grievance in early 2005, defendant brought in an industrial hygienist and representatives from the Division of Occupational Health and Safety to investigate issues regarding contaminants in the buildings. The industrial hygienist's report, dated April 19, 2005, showed that no fiberglass fibers were detected on the third floor of the 1055 building and that there were no health hazards including mold on that floor. The industrial hygienist reported on April 26 that no fiberglass was detected in the air in the buildings. A follow-up assessment was conducted in September 2005, which showed no fiberglass fibers in the air in the building.
In February 2005, plaintiff's family physician, Dr. C.G. Bovetas, determined that plaintiff's "diabetes was out of control"; plaintiff took a medical leave starting February 4, 2005 and returned to work part time a month later. Although plaintiff felt well when she returned to work, within a month she began to again experience respiratory problems, fatigue, and eye irritation. Plaintiff's coworkers told her they too were experiencing symptoms. One coworker, Marilyn Campbell, suggested that plaintiff see Dr. Wempen, who specialized in environmental medicine.
On July 21, 2005, Dr. Wempen submitted a note to defendant, stating plaintiff "must be excused from work for health reasons until August 15, 2005." The record contains several additional notes from Dr. Wempen. In a letter dated October 3, 2005, Dr. Wempen stated that plaintiff "must not return to either the 1055 N. Main Street building nor to the 1015 N. Main Street building in Santa Ana. She has sustained immune and neurological damage and becomes symptomatic whenever she enters those premises." Dr. Wempen also repeatedly extended plaintiff's medical leave of absence. In a letter dated March 23, 2006, Dr. Wempen stated that "[b]ecause of the immune and neurological damage to her body, [plaintiff]'s period of Disability and postponement of return to work should be extended to October 1, 2006. She will not have adequately recovered from her health problems to recommence working by early or mid November."
During her medical leave of absence, plaintiff met with a supervisor in human resources and others to discuss how plaintiff could return to work. They discussed that although training was an essential function of plaintiff's job, plaintiff could not go into the 1015 building for training, pursuant to Dr. Wempen's directive. Plaintiff rejected the option of returning to the 1055 building even if defendant built her higher cubicle walls and provided her with an air filter, because of Dr. Wempen's directive.
Plaintiff requested she be permitted to work from home. Defendant determined that arrangement was not feasible due to security concerns and difficulties with supervising her work. Plaintiff was advised to search for positions in other agencies, using defendant's intranet and the Internet. She was also provided a list of job positions and was told she could explore the positions she would be interested in, but it was uncertain whether any of those positions would be open.
In October 2006, plaintiff applied for an eligibility technician position. She submitted her letter of resignation to defendant on November 28, 2006.
Plaintiff filed a complaint alleging claims for disability discrimination, harassment, and retaliation in violation of the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.), and alleging violation of the Moore-Brown-Roberti Family Rights Act (Gov. Code, § 12945.2 et seq.). Plaintiff later abandoned her claim for violation of the Moore-Brown-Roberti Family Rights Act.
Before trial, plaintiff filed a single motion in limine seeking to exclude from trial any evidence "relating to [p]laintiff's other physical conditions and/or lawsuits/claims not at issue in the matter, including [p]laintiff's previous lawsuit against the building owner for loss of consortium and negligence." Plaintiff argued such evidence would be irrelevant under Evidence Code section 350 and unduly prejudicial within the meaning of Evidence Code section 352. Defendant filed written opposition to plaintiff's motion in limine.
Defendant filed four motions in limine, only two of which are relevant to the issues raised in this appeal. Defendant filed a motion in limine seeking to preclude plaintiff's "non-retained expert Ronald Wempen, M.D., from offering any testimony at trial regarding the causation of [p]laintiff's alleged symptoms." Defendant anticipated Dr. Wempen would offer testimony that plaintiff "became exposed to contaminants such as mold and chemicals at her place of employment, located at 1015 and 1055 North Main Street, Santa Ana, California."
Defendant also filed a motion in limine seeking to preclude plaintiff's former coworkers, Marilyn Campbell, Vanessa Banken, and Daisy Ortiz, "from testifying to the issue of causation of [p]laintiff's injuries." Defendant argued the cause of plaintiff's injuries could be explained only through expert testimony. Defendant further argued that "[t]o the extent these witnesses seek to offer testimony on the issue of causation of their own illnesses as being related to the same cause of [p]laintiff's injuries, such testimony should be excluded because it lacks foundation, is speculative, has no probative value, and is highly prejudic[ial] to [defendant]."
The trial court denied plaintiff's motion in limine. The court granted defendant's motions in limine as to Dr. Wempen's testimony and the coworker witnesses' testimony.
The jury returned a special verdict in favor of defendant. The jury answered "[n]o" in response to the question on the special verdict form, "[d]id [defendant] discriminate against [p]laintiff because of an actual or perceived disability?" The jury also answered "[n]o" in response to the question, "[w]as [plaintiff] able to perform the essential job duties with reasonable accommodation for her actual or perceived physical disorder?"
Judgment was entered in favor of defendant. Plaintiff appealed.
"Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 201.) "`This standard of review applies to a trial court's determination of the relevance of evidence, as well as to whether the evidence's probative value is substantially outweighed by its prejudicial effect.'" (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530; see also People v. Cudjo (1993) 6 Cal.4th 585, 609 [trial court's ruling on Evidence Code section 352 is reviewed for abuse of discretion].) "The trial court's `discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.'" (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640.) Even if the trial court's evidentiary ruling was in error, reversal is not required unless the error was prejudicial. (Employers Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 919.)
Plaintiff contends the trial court abused its discretion by (1) allowing evidence of plaintiff's prior lawsuit against the building's owner (the prior action); (2) precluding plaintiff's coworkers from testifying that their health problems were caused by contaminants in the buildings; and (3) precluding Dr. Wempen from offering an expert opinion that contaminants in the buildings caused plaintiff's health problems. For the reasons we will explain, we reject each of plaintiff's contentions of error.
Plaintiff challenges the trial court's denial of her motion in limine in which she sought, inter alia, the exclusion of evidence of the prior action against the buildings' owner. Plaintiff's attorney's declaration filed in support of her motion stated: "The specific evidence sought to be excluded is any evidence of [p]laintiff's prior litigation against the building owner for loss of consortium and negligence, stemming from exposure to mold and other toxins." Attached to counsel's declaration was a copy of the complaint filed in August 2006 by, inter alia, plaintiff and three coworkers against, inter alia, Michael Harrah, the owner of the 1055 building. The complaint alleged that during the course of their employment, plaintiff and her three coworkers suffered health problems after inhaling and absorbing "toxic and deleterious substances."
Plaintiff argued the trial court should exclude evidence of the prior action because such evidence would be irrelevant and unduly prejudicial under Evidence Code sections 350 and 352. In opposition, defendant argued the evidence would be relevant to prove defendant's entitlement to an offset in the event plaintiff prevailed in this action and the prior action.
At the hearing on the motion in limine, the court, plaintiff's counsel, and defendant's counsel discussed how evidence of the prior action would be relevant in determining whether defendant might be entitled to an offset in the event the jury returned a verdict in favor of plaintiff:
In addition, the trial court later explained that evidence of the prior action would be relevant in determining the credibility of plaintiff's coworkers who joined plaintiff in filing the prior action and who were to testify in the instant action.
Plaintiff contends the probative value of the evidence of the prior action, however, is substantially outweighed by its prejudicial impact under Evidence Code section 352.
No such prejudice materialized following the trial court's ruling on the motion in limine. Over the course of the six-day trial in this matter, only the following three references were made to the prior action.
First, during defendant's counsel's opening statement, counsel stated: "[Plaintiff] then talked to some of her co-workers who were deciding two things. One was they were considering filing a lawsuit against the owner of the building. I think they ultimately did, along with [plaintiff]."
Second, one of plaintiff's coworkers and a coplaintiff in the prior action testified as follows during defendant's counsel's cross-examination:
Third, during cross-examination, plaintiff testified as follows:
Plaintiff has failed to show how admission of the evidence of the prior action constituted an abuse of discretion. We find no error.
Plaintiff contends the trial court erred by precluding plaintiff's coworkers from testifying that contaminants in the 1055 building caused their own health problems. In her reply brief, plaintiff argues the exclusion of that evidence was prejudicial because "the reasonableness of [defendant]'s efforts to accommodate [plaintiff]'s restriction on working in the 1015 and 1055 Main Street buildings cannot be assessed without understanding that the buildings
Although plaintiff's coworker witnesses were precluded from offering their lay opinion that contaminants in the buildings caused their own health problems, the trial court permitted the coworker witnesses to testify about the symptoms they experienced in the buildings. The court also stated it would allow evidence regarding the coworkers' discussions with plaintiff. In addition, evidence was presented to the jury showing coworkers of plaintiff had experienced similar symptoms that plaintiff had experienced and defendant had received complaints from other employees.
The trial court did not by err by precluding the coworker witnesses from testifying that the buildings' contaminants caused particular health problems they suffered because medical causation is generally established by competent expert medical opinion, not by lay opinion. (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385 [as a general rule, "medical causation can only be determined by expert medical testimony"].) Whether the type, concentration, and location of the contaminants found in the buildings caused plaintiff's coworkers' particular health problems is not a matter of common knowledge; expert opinion testimony on causation in this case would be necessary. (Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1764 ["Expert testimony is required unless it is a matter of common knowledge what conduct was required under the particular circumstances of the case"].)
Plaintiff cites, without analyzing, Waite v. Godfrey (1980) 106 Cal.App.3d 760, 764, and People v. Smith (1976) 59 Cal.App.3d 751, 754-755, in support of her argument the trial court erroneously precluded lay opinion testimony on the issue of medical causation. Both cases are inapposite. In Waite v. Godfrey, supra, 106 Cal.App.3d at page 764, the plaintiff sustained personal injuries as a result of an automobile collision. The appellate court stated, "there was no error in the admission of opinion testimony by plaintiff about her own physical condition which she claimed had caused her to miss 24 months of work." (Ibid.) Waite v. Godfrey did not address the circumstances in which a lay opinion is sufficient to establish medical causation. Even if it had, that a car collision caused certain injuries might be, depending on the type of injuries, sufficiently within common experience to obviate the need for an expert opinion on medical causation.
People v. Smith, supra, 59 Cal.App.3d at page 751, is also distinguishable from the instant case. In People v. Smith, the appellate court concluded evidence of the defendant's over an hour-long beating of his pregnant victim, including repeatedly kicking her in the stomach, was sufficient to establish that the defendant caused the victim's miscarriage. (Id. at pp. 753-755.) The circumstances in People v. Smith are far different from the circumstances of the instant case in which an expert opinion would be needed to determine the medical causation of certain illnesses as a result of exposure to contaminants in the workplace.
We find no error.
In one of its motions in limine, defendant did not seek to preclude Dr. Wempen from testifying entirely, but only to specifically preclude him from testifying that contaminants in the buildings caused plaintiff's health problems. Defendant argued Dr. Wempen lacked "the requisite information" to testify as to the medical causation of plaintiff's health problems, including her symptoms of fatigue and low energy levels. In support of its argument, defendant produced excerpts from Dr. Wempen's deposition at which he testified he never (1) personally inspected the buildings or hired anyone to inspect them; (2) reviewed any reports regarding the inspection of the buildings at the time he treated plaintiff for her symptoms; (3) conducted tests showing whether plaintiff was actually exposed to any of the contaminants she claimed caused her health problems, including fatigue, low energy levels, and probable chemical brain damage; and (4) performed any test to determine whether plaintiff experienced neurological symptoms. At his deposition, Dr. Wempen acknowledged that other factors could have caused plaintiff's fatigue and low energy levels. The trial court granted the motion in limine because any opinion of Dr. Wempen that plaintiff's health problems were caused by contaminants in the buildings would lack foundation.
Citing Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39, Easterby v. Clark (2009) 171 Cal.App.4th 772, 782, and Fatica v. Superior Court (2002) 99 Cal.App.4th 350, 353, plaintiff argues, "[i]t is well-established that a treating physician is not limited to opinion testimony based on observations and treatment of a plaintiff, but may include opinions regarding causation and standard of care." The trial court's ruling was not inconsistent with this legal principle. Had Dr. Wempen a proper basis for offering an opinion on causation, such an opinion would have been admissible. As discussed ante, Dr. Wempen lacked any basis for offering an expert opinion that plaintiff's health problems were caused specifically by contaminants in the buildings.
Plaintiff argues that after Dr. Wempen's deposition commenced, but before trial, Dr. Wempen "had the reports [defendant] believed were relevant to the line of questioning it wished to pursue." Plaintiff further argues, "the proper course of action in these circumstances would be to continue the deposition, rather than exclude Dr. Wempen from testifying about his views on the cause of [plaintiff]'s health problems."
But plaintiff does not argue that Dr. Wempen's opinion is now supported by a sufficient foundation. Other than vaguely referring to Dr. Wempen's receipt of unspecified reports after his deposition was taken in 2009, plaintiff has failed to explain how an expert opinion by Dr. Wempen that plaintiff's health problems in 2005 and 2006 were caused by contaminants in the buildings would be supported by a proper foundation.
Plaintiff argues that, in any event, the trial court should have allowed Dr. Wempen to offer an expert opinion that plaintiff's health problems were caused by the contaminants in the 1055 building. She contends cross-examination would have sufficiently exposed any lack of a proper foundation for such an opinion. We review, however, the trial court's evidentiary rulings for abuse of discretion. Expert opinions lacking a proper foundation are not admissible. Evidence Code section 801, subdivision (b) provides that an expert's opinion must be "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." We cannot conclude the trial court erred by excluding such an opinion on this record.
During defendant's counsel's cross-examination of plaintiff, counsel asked plaintiff about the treatment she received from Dr. Wempen. Counsel asked plaintiff whether she was aware that Dr. Wempen had his medical license revoked and had been placed on formal probation. Plaintiff stated she was unaware of such discipline.
Plaintiff argues the trial court erred by then admitting into evidence the stipulated settlement and disciplinary order by the Medical Board of California in response to an accusation alleging Dr. Wempen engaged in conduct constituting gross negligence, "[r]epeated [n]egligent [a]cts," and incompetence in the provision of medical services to a patient in 1996. The accusation stated Dr. Wempen failed to take a medically appropriate history, perform a medically appropriate physical examination, conduct an appropriate medical evaluation, and conduct appropriate diagnostic testing. The accusation also stated Dr. Wempen made a diagnosis without conducting a physical examination, and diagnosed the patient as suffering from mercury toxicity notwithstanding laboratory test results from the previous day showing the patient "had a low range of mercury." In the stipulated settlement and disciplinary order, Dr. Wempen admitted the allegations of the accusation.
Plaintiff argues the trial court erred by admitting those documents into evidence because they were offered to impeach Dr. Wempen even though he did not testify at trial; instead, excerpts from his deposition testimony were read into the record. Plaintiff also argues the probative value of such evidence was substantially outweighed by its prejudicial impact.
We do not need to determine whether the trial court erred by admitting evidence of Dr. Wempen's prior record of discipline because any such error was harmless in light of the jury's special verdict. As stated by plaintiff's trial counsel, the issue before the jury was not whether Dr. Wempen was credible, but whether he prepared a doctor's note that was submitted to and accepted by defendant. There was no evidence defendant did not accept the note or told plaintiff she was required to provide a note from a different doctor. The issue was whether defendant discriminated against plaintiff because of her disability.
The jury apparently found Dr. Wempen's assessment of plaintiff's ability to work as credible because it found that plaintiff was not able to perform the essential functions of her position with or without reasonable accommodation. Dr. Wempen was the only physician who restricted plaintiff from working in the buildings and from returning to work until October 2006. The admission of Dr. Wempen's discipline record was therefore harmless.
The judgment is affirmed. Respondent shall recover costs on appeal.
O'LEARY, ACTING P. J. and IKOLA, J., concurs.
