Belfiore-Braman v. Rotenberg (June 26, 2018, D072015) __ Cal.App.5th __ [2018 WL 3120174], certified for publication July 13, 2018
Plaintiff Angela Belfiore-Braman complained of sciatic nerve injury following hip replacement surgery by Dr. Daniel Rotenberg. In Belfiore-Braman’s ensuing medical malpractice litigation against Dr. Rotenberg, she sought to introduce medical opinion testimony from a nonretained expert, Dr. Aaron Filler, regarding an imaging study he conducted that allegedly indicated that the surgery may have caused her injury. The trial court excluded Dr. Filler’s testimony, ruling that it lacked foundation and was unduly duplicative of Belfiore-Braman’s orthopedic surgeon expert’s testimony. The jury returned a defense judgment, and Belfiore-Braman appealed.
The Court of Appeal affirmed, holding that the trial court did not abuse its discretion in excluding Dr. Filler’s testimony on causation and damages. First, Dr. Filler’s testimony lacked an adequate foundation because he did not perform the hip replacement surgery and did not review the operative report or medical records. Additionally, the trial court properly excluded Dr. Filler’s proffered testimony about possible excessive use of force as cumulative, because plaintiff’s expert orthopedic surgeon had already testified that the operative report showed the nerve had been stretched too far during the surgery and that this was a substantial factor in contributing to plaintiff’s sciatic nerve injury.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
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