AMADOR v. COUNTY OF LOS ANGELES

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Court of Appeal, Second District, Division 7, California.

Gabriela AMADOR, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

No. B045901.

Decided: July 16, 1992

Roslyn J. Stewart, Torrance, and David Drexler, Los Angeles, for plaintiff and appellant. Bonne, Jones, Bridges, Mueller & O'Keefe, George E. Peterson, Ted O'Leary, Los Angeles, Greines, Martin, Stein & Richland, Kent L. Richland and Carolyn Oill, Beverly Hills, for defendant and respondent.

In a medical malpractice action plaintiff, Gabriela Amador, appeals from judgment on special verdict entered against her and in favor of defendant, County of Los Angeles.

FACTS

In 1981 Hilda Murillo, 19 years of age, received prenatal care at Martin Luther King, Jr., General Hospital (the hospital) during her first pregnancy.   On November 27, 1981, plaintiff was born to Ms. Murillo at the hospital.   When mother and baby were discharged three days later, the hospital personnel told Ms. Murillo that plaintiff was “fine.”   Ms. Murillo first suspected there was something wrong with plaintiff when she was about three months old.   An examination of plaintiff at the age of three and a half months disclosed that she had an abnormally small head and marked spasticity.   Plaintiff subsequently was diagnosed as having cerebral palsy characterized by spastic quadraparalysis, together with profound retardation.

Plaintiff, by her guardian ad litem, sued defendant county for damages for medical malpractice.   The theory of the action was that plaintiff suffered permanent brain damage as the result of a lack of oxygen shortly before birth and that defendant, acting through the hospital, was negligent in having failed to detect and remedy the lack of oxygen.

Plaintiff's evidence on the issue of negligence showed:  At about 12:10 a.m. on November 27, 1981, while Ms. Murillo was at home, the bag of water in her uterus broke.   Ms. Murillo, accompanied by her mother and sister, went to the hospital.   They arrived at 12:45 a.m. and entered through the emergency door.   The sister explained to the emergency room attendant that Ms. Murillo's bag of water had ruptured;  Ms. Murillo immediately was put into a wheelchair and taken to the reception area of the maternity section on the second floor of the hospital.   The person behind the counter in the reception area asked Ms. Murillo to wait and told her she would be called soon.   While she was waiting Ms. Murillo had severe contractions, cried, and was pale.   At about 3:25 a.m. she finally was put in the charge of medical personnel.   Vaginal delivery took place at 4:25 a.m.   It was below the standard of care to have kept Ms. Murillo waiting from 12:50 to 3:25 a.m. without giving her a bed or examining her.   Once she was put in the care of doctors, it was below the standard of care not to have monitored the progress of her labor.  (The hospital records did not indicate that Ms. Murillo was examined between 3:25 a.m. and the time of delivery.)   It was also below the standard of care not to have performed fetal heart monitoring of Ms. Murillo.   Such procedure would have detected an interruption in the supply of oxygen to the fetus.

Plaintiff presented two expert witnesses on the issue of causation, Dr. Sanford Schneider and Dr. Roger Huf.1  Dr. Schneider testified that as a reasonable medical probability plaintiff's condition was caused by hypoxia (decrease in oxygen).   However, he could not say when in the prenatal period or the perinatal period (at or about the time of birth) the hypoxia occurred.   “I can't time it․   Perinatally or prenatally, no, I cannot time it in that period of time, correct.”   Dr. Schneider further testified that the only symptoms noted on plaintiff's newborn record which suggested hypoxia were that plaintiff “turned blue” and had some nasal flaring;  Schneider admitted that such symptoms also were consistent with difficulty plaintiff experienced in achieving her first bowel movement.   Dr. Huf, too, attributed plaintiff's condition to hypoxic encephalopathy (reduced supply of oxygen to the brain).   He testified that as a reasonable medical probability the hypoxia occurred during a period beginning 12–18 hours before birth and ending 24 hours after delivery.   Dr. Huf was unable to fix the time of the hypoxic event with greater precision.

Defendant's three expert witnesses on the issue of causation—Dr. Cynthia Curry, Dr. Ira Lott and Dr. Ricardo Liberman—expressed the opinion it was medically improbable that plaintiff's condition was caused by hypoxia during labor and delivery.

The jury rendered a special verdict wherein it found that defendant was negligent but that such negligence was not a legal cause of damage to plaintiff.

Judgment on the special verdict was entered in favor of defendant and against plaintiff.   Following denial of her motion for judgment notwithstanding the verdict or for new trial, plaintiff timely appealed from the judgment.

DISCUSSION

I

Plaintiff contends the trial court erred prejudicially by permitting defendant's counsel to read from, or refer to, the following medical publications, studies and reports during counsel's examination of witnesses.

 Journal of Pediatrics

On cross-examination Dr. Schneider testified that he had read, reviewed, and considered an article by Dr. John Freeman and Dr. Karen Nelson regarding intrauterine asphyxiation that appeared in the August 1988 issue of the Journal of Pediatrics.   Defendant's counsel then read an excerpt from the article which stated that it cannot be said with a reasonable degree of medical certainty that cerebral palsy in a given child was caused by intrapartum asphyxia (lack of oxygen during labor and delivery) merely because the physician can find no other explanation.

Plaintiff did not object to the reading of the excerpt when it took place at the end of the proceedings on Friday, July 14, 1989.   At the outset of the proceedings on the next day of trial (Mon., Jul. 17) plaintiff objected to the reading of the excerpt from the Journal of Pediatrics article on the ground of hearsay, and moved to strike the portions read.   The motion was denied.

Defendant's counsel proposed to read to the jury the definition of cerebral palsy in the Freeman–Nelson article used by the National Collaborative Perinatal Project.   Plaintiff objected on the ground of lack of foundation.   The objection was overruled.   Defendant's counsel then read the definition, which did not mention causation and thereby differed from an 1862 definition of cerebral palsy, used by Dr. Schneider, which associated the condition with a cause.

 OB/GYN News

Dr. Schneider testified on cross-examination that he was aware of an organization known as the California Birth Defects Monitoring Program (Program).   Defendant's attorney then asked Schneider whether he was aware of statistics compiled by the Program which showed that no one knows the cause of 80 percent of birth defects.   Plaintiff objected on the ground of hearsay.   The court did not rule on the objection but pointed out that defendant had laid no foundation regarding the Program.   Under questioning by defendant, Dr. Schneider then testified that the Program is a privately funded organization in Berkeley that monitors birth defects in California;  the medical director of the Program is a pediatrician, Dr. Susan Comins, whom Schneider invited to speak at a California Medical Association meeting which he organized.   Dr. Comins's speech at that meeting was reported in the OB/GYN News of May 15–31, 1989.   Schneider testified that he was familiar with Dr. Comins's speech and that it was accurately reported in the OB/GYN News.

Defendant proposed to read to the jury excerpts from Dr. Comins's speech.   Plaintiff objected on the ground of hearsay.   The objection was overruled.   Defendant then read portions of the speech (as reported in the OB/GYN News) wherein Dr. Comins stated that the smugness in the medical community regarding the cause of cerebral palsy is unwarranted;  although some physicians thought that improved delivery techniques would prevent cerebral palsy, that has not been the case;  much remains to be learned about “this complex condition.”   Dr. Schneider testified that he disagreed with Dr. Comins's remarks because the validity of the data on which they were based is questionable.

 Report of Dr. Henry Pribram

Dr. Ira Lott, one of defendant's expert witnesses, asked Dr. Henry Pribram, a neuroradiologist, to perform a magnetic resonance imaging (MRI) brain scan of plaintiff in conjunction with Dr. Lott's examination of plaintiff.

During redirect examination of Dr. Schneider, plaintiff asked him to interpret the MRI brain scan.   Schneider testified that the MRI scan showed some atrophy of the brain substance, but no malformation of the brain, and that the scan was consistent with hypoxia as a cause of plaintiff's condition.   On recross-examination Dr. Schneider testified that at his deposition he was shown Dr. Pribram's report summarizing the results of the MRI scan;  Schneider read the report and disagreed with it;  further, the report did not cause him to change his opinion regarding the cause of plaintiff's brain damage.   Plaintiff objected to defendant's reading from or referring to the Pribram report on the ground of hearsay.   The objection was overruled.

In his report Dr. Pribram concluded in essence that plaintiff's condition was caused by congenital leukodystrophy (degenerative white matter disease of the brain), not by asphyxia or hypoxia.   Defendant's counsel read portions of the report's conclusion to Dr. Schneider, who testified again that he disagreed with the conclusion.   On cross-examination Dr. Huf testified that during the taking of his deposition he was shown Dr. Pribram's report and that he did not agree with the conclusion expressed in the report.   Defendant's counsel again referred to the Pribram report during his direct examination of defendant's expert witnesses Dr. Cynthia Curry and Dr. Ira Lott.   Both of these witnesses testified that they had read the report and agreed with its conclusion that plaintiff's brain damage was consistent with leukodystrophy rather than hypoxia.

 Animal Studies

On cross-examination Dr. Schneider was asked whether, in view of the severity of plaintiff's retardation, the hypoxia to which he attributed her condition took place three or four hours before delivery.   Schneider answered that no one could conduct an experiment on a human establishing the truth of defendant's premise;  he added that studies had been performed on monkeys along those lines.   Schneider further testified that such studies, made in the early 1960's by two physicians, indicated that the period of hypoxia had to be prolonged to cause a monkey fetus to be severely damaged.

During Schneider's testimony plaintiff objected on the ground of hearsay.   The objection was overruled.   At the conclusion of the testimony plaintiff moved to strike it on the ground of irrelevancy.   The motion was denied.

Plaintiff contends defendant's cross-examination of Dr. Schneider and Dr. Huf regarding the content of the foregoing publications, reports or studies was prohibited by Evidence Code section 721, subdivision (b) 2 because neither witness testified that he relied on such materials in forming his opinion.

 “Where an expert testifies in the form of an opinion, under section 721, subdivision (b) of the Evidence Code, cross-examination is permitted in regard to the content or tenor of any scientific, technical or professional publication if the witness has referred to, considered or relied upon the publication in forming his opinion.”  (People v. Kozel (1982) 133 Cal.App.3d 507, 535, 184 Cal.Rptr. 208.)   Most significantly, the statute permits cross-examination of an expert witness regarding a publication or report which the witness testifies he considered, read or referred to, even though he did not rely on the publication or report in forming his opinion.3  (Ibid;  2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 29.8, p. 1036;  Law Revision Commission Comment to Evid.Code, § 721.)   Our Supreme Court has extended the scope of cross-examination of expert witnesses further still:  “An expert may be cross-examined regarding the subject to which his testimony relates, the matter on which he bases his opinion, and the reasons for his opinion.  (Evid.Code, § 721, subd. (a).)  Therefore, a party seeking to attack the credibility of the expert may bring to the attention of the jury material relevant to the issue on which the expert has offered an opinion of which the expert was unaware or which he did not consider.   The purpose and permissible scope of impeachment of an expert is to call into question the truthfulness of the witness's testimony.”  (People v. Bell (1989) 49 Cal.3d 502, 532, 262 Cal.Rptr. 1, 778 P.2d 129.) 4

 Dr. Schneider testified on cross-examination that he had read the Freeman–Nelson article in the Journal of Pediatrics and the report of Dr. Pribram.   While it does not appear that he read Dr. Comins's speech as reported in the OB/GYN News, Schneider testified that he was familiar with the speech and that it was accurately reported in OB/GYN News.   The article (including the definition of cerebral palsy therein), the report and the speech all were relevant to the issue on which Schneider offered an opinion, viz., the cause of plaintiff's condition, and tended to discredit that opinion.   Accordingly, the trial court properly permitted defendant to read from the article, the report and the speech (as reported in the OB/GYN News) in cross-examining Dr. Schneider.   Plaintiff's hearsay objections were properly overruled because the content of the article, the report and the speech was offered not to prove their truth, but for the purpose of casting doubt on the validity of Dr. Schneider's opinion.5  (See 2 Jefferson, Cal. Evidence Benchbook, op. cit. supra, § 29.8, pp. 1038–1039.)

 Dr. Huf, plaintiff's other expert witness on causation, testified on cross-examination that he was shown the Pribram report when his deposition was taken.   While he did not expressly state that he had read the report, that conclusion follows from his further testimony that he disagreed with the conclusion set forth in the report.   Accordingly, defendant's counsel properly read excerpts from the report in cross-examining Dr. Huf for the purpose of impeachment, i.e., attempting to discredit the validity of Huf's opinion that perinatal hypoxia was the cause of plaintiff's condition.

 Dr. Schneider, not defendant, brought up the monkey studies during his cross-examination.   Defendant did not read any portion of the studies to Schneider in an effort to impeach him, or for any other purpose;  indeed, Schneider's testimony did not indicate that the studies were ever published.   In short, by no stretch of the imagination can it be said that Schneider's reference to the monkey studies constituted an improper attempt by defendant to impeach Schneider based on the content of the studies.

 Plaintiff argues that defense counsel improperly referred to the Pribram report during his direct examination of defendant's expert witnesses Dr. Curry and Dr. Lott.   In this phase of the appeal, however, the sole ground for reversal asserted by plaintiff is that defendant's reading of, or reference to, medical articles or reports was improper under Evidence Code section 721, subdivision (b).   That provision restricts reference to professional publications only on cross-examination of expert witnesses.   Inasmuch as plaintiff suggests no ground other than violation of section 721 for holding improper defendant's reference to the Pribram report during direct examination of its own experts, we reject the contention.

II

 Plaintiff contends it was prejudicial error to admit the cumulative testimony of defendant's three expert witnesses on the issue of causation, Dr. Curry, Dr. Lott and Dr. Liberman.6

Dr. Curry is a pediatrician with specialties in genetics and dysmorphology (abnormal physical features).   In Dr. Curry's opinion it was “highly unlikely” that plaintiff's condition was the result of hypoxia during labor and delivery because the hospital records she reviewed disclosed that plaintiff had none of the symptoms of perinatal hypoxia, such as limpness, gagging, seizures, low heart rate, interruption in breathing, or problems with kidney function or liver function.

Dr. Lott, a pediatric neurologist, examined plaintiff in December 1987 and reviewed her hospital records.   In Dr. Lott's opinion it is medically improbable that plaintiff underwent a hypoxic event during labor and delivery because the records showed no evidence of hypoxia.   If damage as profound as that suffered by plaintiff had resulted from hypoxia, plaintiff would have been in a coma, on assisted ventilation, would have had multiple seizures during the newborn period, and there would have been evidence of perinatal asphyxia in the blood;  none of these signs of hypoxia was present.   A baby damaged by perinatal hypoxia to the extent that plaintiff was damaged would have been profoundly sick and could not have gone home from the hospital.   In Dr. Lott's opinion plaintiff suffered from intrauterine brain malformation.   It is a reasonable medical probability that plaintiff has congenital leukodystrophy.   Dysmorphic features suggest that something went wrong with the brain during its development.

Dr. Liberman is a neonatologist (i.e., treats babies who are premature or unwell at birth).   Based on his review of plaintiff's hospital records, it was Dr. Liberman's opinion that as a reasonable medical probability plaintiff did not suffer a hypoxic event at any time during labor and delivery because she had an “uneventful neonatology course”;  she fed well, acted normally, and was discharged from the hospital three days after delivery.

A trial court has wide discretion in determining whether evidence is cumulative (McGee v. Cessna Aircraft Co. (1983) 139 Cal.App.3d 179, 192, 188 Cal.Rptr. 542) and in determining whether or not to receive cumulative evidence.  (Evid.Code, § 352;  Bates v. Newman (1953) 121 Cal.App.2d 800, 807, 264 P.2d 197.)   Each of defendant's medical experts had a different area of specialization and each expressed different reasons for his or her opinion that plaintiff's cerebral palsy was not caused by perinatal hypoxia.   Under these circumstances we perceive no abuse of discretion in permitting all three witnesses to testify.

III

 Plaintiff contends the trial court erred prejudicially by allowing six of defendant's witnesses to testify during plaintiff's case in chief.  (Code Civ.Proc., § 607.)

Plaintiff objected that two of defendant's medical witnesses were to testify out of order during plaintiff's case in chief;  the objection was overruled.   Between the testimony of the first and the second of these witnesses plaintiff was allowed to state, as a point of information for the jury, that plaintiff had not rested her case and that its presentation had been interrupted by defendant's witnesses;  defendant's counsel added that the witnesses were testifying out of order to accommodate their schedules.   Plaintiff made no objection when four other defense witnesses testified during plaintiff's case in chief.

A trial court has discretion to control the order of testimony (Douglass v. Board of Medical Quality Assurance (1983) 141 Cal.App.3d 645, 658, 190 Cal.Rptr. 506) and its ruling in this regard will not be disturbed on appeal absent an abuse of discretion.  (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 584, 140 Cal.Rptr. 330.)   Plaintiff argues that abuse of discretion appears because the testimony of six defense witnesses during plaintiff's case in chief created confusion, distorted the presentation of plaintiff's evidence, and “chopped [her case] to pieces.”   Further, she asserts, there was no reason to permit the witnesses to testify out of order.   We disagree.   With the exception of a nurse, all of such witnesses were practicing physicians and, as the trial court noted, it is customary to accommodate the schedules of medical witnesses.   Plaintiff was allowed to explain to the jury that the witnesses were testifying out of order and that she had not completed the presentation of her evidence.

On this record it cannot be said that the special verdict in favor of defendant on the issue of causation resulted from confusion of the jury, or a weakening of plaintiff's case, attributable to the order in which the evidence was presented.   A review of the entire record convinces us that the jury found against plaintiff on causation because of the nature of the evidence, not because of the order of proof.

The trial court did not abuse its discretion in permitting defense witnesses to testify during plaintiff's case in chief.

DISPOSITION

The judgment is affirmed.

I concur in the judgment but write separately to register my disagreement with the majority's discussion of the admissibility of certain testimony.   Specifically, I am concerned the majority is stretching some dictum from the Supreme Court opinion in People v. Bell (1989) 49 Cal.3d 502, 262 Cal.Rptr. 1, 778 P.2d 129 in ways unintended by our high court and which would completely undercut Evidence Code section 721, subd. (b).1

The quotation in question is found at page 33 of the majority opinion and is repeated in full context below.   In my view, when read in context this language fails to support the proposition an expert may be cross-examined about “scientific, technical, or professional” publications he did not refer to, consider, or rely upon “in arriving at or forming his opinion.”

People v. Bell was a death penalty case.   Among a host of other issues, appellant argued the prosecutor was guilty of prosecutorial misconduct during cross-examination of the defendant's expert.   The expert had ventured an opinion the eyewitness testimony identifying defendant as the perpetrator was unreliable.   On cross-examination of this defense expert, the prosecutor asked whether the defense expert had read a certain police report in which an undisclosed confidential informant had said he saw the defendant cleaning a “small-barreled gun” the day before the crime.   Defense counsel objected, the court sustained the objection and admonished the jury.

The Supreme Court held it was error and indeed “egregious” misconduct for the prosecutor to question the defense expert about this police report, although it ultimately held the error to be harmless.   It was in the course of explaining why it was error to cross-examine an expert about a contrary fact—a treatise or other publication was not even involved in the case—that the court used the language quoted above.   The high court was distinguishing between contrary evidence it may be permissible to introduce independently as general rebuttal of the position the expert's opinion tends to support from what it is permissible to use in an attempt to impeach the credibility of the expert's opinion.   The Supreme Court reasoned as follows, with the language the majority chose to quote italicized.

“The prosecutor's action was clearly misconduct whether or not it violated the stipulation.   Dr. Shomer's knowledge of that statement in the police report was not relevant to his opinion regarding the reliability of the identification.   An expert may be cross-examined regarding the subject to which his testimony relates, the matter on which he bases his opinion, and the reasons for his opinion.  (Evid.Code, § 721, subd. (a).)  Therefore, a party seeking to attack the credibility of the expert may bring to the attention of the jury material relevant to the issue on which the expert has offered an opinion of which the expert was unaware or which he did not consider.   The purpose and permissible scope of impeachment of an expert is to call into question the truthfulness of the witness's testimony.   Impeachment is not general rebuttal.  (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 922 [184 Cal.Rptr. 393].)

“Dr. Shomer did not offer an opinion on defendant's guilt.   He testified only about the factors that might have influenced the child witnesses, and that he believed, based on those factors, that the identifications were unreliable.   Knowledge that an unidentified informant claimed defendant had been in possession of a handgun shortly before the murder was irrelevant to his opinion that the impact of outside influences on the children made their identification unreliable.  ‘The deliberate asking of questions calling for inadmissible and prejudicial answers is misconduct.’   (People v. Fusaro (1971) 18 Cal.App.3d 877, 886 [96 Cal.Rptr. 368].)”  (People v. Bell, supra, 49 Cal.3d at p. 532, 262 Cal.Rptr. 1, 778 P.2d 129.)

It is apparent the Supreme Court's attention was fixed on the line between “rebuttal” and “impeachment” in the context of factual material of which the expert may or may not be aware.   In effect, it held—or reconfirmed—an expert may not be impeached by asking the witness whether he or she is aware of facts unrelated to the specific opinion the expert is expressing merely because those facts, if true, may support an inference contrary to the expert's opinion.

The high court in Bell was not focussed on nor expressing an opinion about the proper scope of inquiry as to anything other than factual material about the specific case on trial.   Nothing in the decision suggests the court was even thinking about the admissibility of treatises or other publications which embody the views of other experts on the general theories or scientific principles that might factor into the witness' opinion.   Nothing in Bell required the court to even consider the limitation section 721, subd. (b) imposes on this form of cross-examination.

Accordingly, it is difficult to conclude, as the majority does, that “Our Supreme Court [in Bell] has extended the scope of cross-examination of expert witnesses further still:  ․” (Maj. opn. at p. 33.)   In particular, I question whether it is appropriate to read the high court's Bell opinion, as the majority does, to announce a new rule which expands the scope of cross-examination to include treatises and other publications “of which the expert was unaware or which he did not consider.”  (Maj. opn. at p. 33, quoting from People v. Bell, supra, italics added.)   This interpretation flies in the face of the express language of section 721, subd. (b) and its specific prohibition against cross-examination about “any ․ publication unless ․ [t]he witness referred to, considered, or relied upon” it “in arriving at ․ his [or her] opinion․”  (Italics added.)

Assuming the Supreme Court could interpret away the plain language of the section 721, subd. (b) limitation, I sincerely doubt our high court would do so without specifically discussing the language of the section and the rationale for its interpretation.   Yet the court made no mention of section 721, subd. (b) whatsoever in People v. Bell.   Thus, I am left with the firm conviction the permissible scope of cross-examination as to treatises and other publications remains as it was before Bell—an inquiry is impermissible if the publication is one “of which the expert was unaware or which he did not consider.”

In the instant case, the defendant cross-examined plaintiff's expert about several publications which the witness admitted considering—but often rejecting—in forming his opinion.   These were at least marginally admissible for purposes of impeachment under section 721, subd. (b).  But there were others—Dr. Comins's speech is a good example—which plaintiffs expert had not even read to say nothing of “considering” or “relying on.”   This cross-examination could not be justified except through the expansive reading the majority opinion gives to People v. Bell.   For the reasons recited above, I cannot and do not construe Bell in this way.   Consequently, I regard it to have been clear error to have permitted this cross-examination.   However, reviewing the entire record including the extensive contrary opinions from other expert witnesses I conclude this error was harmless.   Consequently, I concur in the judgment.

FOOTNOTES

1.   Plaintiff insists that Dr. Schneider was her sole expert on causation, but the record indicates otherwise.   Dr. Huf testified that, as plaintiff's consulting physician at White Memorial Hospital, his role was both to evaluate plaintiff's condition and to establish an etiology (cause) for her brain damage;  Huf testified extensively on the issue of causation.   In our view, these circumstances make him an expert witness on causation.

2.   Evidence Code section 721, subdivision (b) provides:  “If a witness testifying as an expert testifies in the form of an opinion, he may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless:  [¶] (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his opinion;  or [¶] (2) Such publication has been admitted in evidence.”

3.   The authorities to the contrary upon which plaintiff relies (Baily v. Kreutzmann (1904) 141 Cal. 519, 521–522, 75 P. 104;  Salgo v. Leland Stanford etc. Bd. Trustees (1957) 154 Cal.App.2d 560, 579, 317 P.2d 170) predate the Evidence Code and hence are not controlling insofar as they are inconsistent with the provisions of section 721.  (See Evid.Code, § 2;  I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285, 216 Cal.Rptr. 438, 702 P.2d 596;  Estate of Hering (1980) 108 Cal.App.3d 88, 92, 166 Cal.Rptr. 298.)

4.   We disagree with the narrow reading given the Bell case by the concurring opinion.   In our view the language of Bell quoted above announces a rule of law apart from, and broader than, Evidence Code section 721.   Even if such language is dictum, as the concurring opinion implies, it nevertheless should be considered persuasive inasmuch as it comes from our Supreme Court.  (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297, 262 Cal.Rptr. 754.)   That a statement may be dictum “does not give us license to ignore its persuasive effect and discard it where it represents a statement of the Supreme Court which may well constitute a correct principle of law within the collective minds of that court, but simply unnecessary for the resolution of the matter pending before it.”  (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1046, fn. 13, 260 Cal.Rptr. 886.)

5.   Plaintiff's hearsay objection to the Freeman–Nelson article was properly overruled for the further reason that it was made too late.   While defendant's counsel read from the article immediately before proceedings were adjourned for the day, plaintiff could have objected during a pause in the reading of the article or at the conclusion of the reading.   Instead, plaintiff waited with her objection and motion to strike until the resumption of proceedings on the following Monday.   Objections to evidence must be made in a timely manner as well as upon the proper ground.  (Evid.Code, § 353;  Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 865, 236 Cal.Rptr. 778.)

6.   Plaintiff preserved the point for appeal when, after Dr. Curry testified, plaintiff moved unsuccessfully to exclude the testimony of Dr. Lott and Dr. Liberman on the ground their testimony would be cumulative on the issue of causation.

1.   Unless indicated to the contrary, all statutory references are to the Evidence Code.

LILLIE, Presiding Justice.

FRED WOODS, J., concurs.