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Court of Appeal, Second District, Division 5, California.

Luisa Patricia HERRERA et al., Plaintiffs and Respondents, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants.

Civ. 66231.

Decided: November 25, 1983

Warren & Burleigh, Rolling Hills Estates, Horvitz & Greines, Kent L. Richland, and David S. Ettinger, Encino, for defendant and appellant Los Angeles County. Pollack, Lintz & Williams and William Jerome Pollack, Los Angeles, for plaintiffs and respondents.

Luisa Herrera suffered a head injury on October 7, 1975.   Her father, a doctor, later took her to appellants' hospital emergency room where defendant, Dr. Robbins, treated her.   Luisa suffered further injuries, became disabled, and died within a year.

This personal injury case was consolidated and was tried simultaneously with a wrongful death action arising from the same facts.   The jury was unable to reach a verdict on the wrongful death action and a mistrial was declared.   The opinion of this court will deal with the personal injury case only.

Appellants, the County of Los Angeles and Gary Robbins, M.D., are appealing from a judgment, based upon a jury verdict, which was rendered against the appellants and in which the jury found that the appellants were 60 percent negligent and respondent, Gaston Herrera, was 40 percent negligent.   The total jury verdict was for a sum of $63,682 in favor of respondents which was reduced 40 percent because of the negligence of respondent, Gaston Herrera, resulting in a final judgment of $38,209.20 entered in favor of respondents.


The basic issues in this case are:

1. Whether a trial court may preclude the testimony of a newly discovered witness, who was not named in any answers to interrogatories, and whose identity was not disclosed until the third day of trial proceedings?

2. Whether alleged misconduct of plaintiffs' counsel at trial created prejudicial error which prevented appellants from receiving a fair trial?


On October 7, 1975, 13-year-old Luisa Herrera (hereinafter Luisa) fell off the hood of a neighbor's car as the car turned into the driveway of the Herrera's home.   Luisa suffered severe head injuries from the fall.   Dr. Gaston Herrera (hereinafter Gaston) Luisa's father, conducted a physical examination.   Although Luisa showed abnormal symptoms, Gaston kept Luisa under observation at home for approximately six hours after the accident.   It was not until Luisa vomitted a second time and showed left-side paralysis that Dr. Herrera took Luisa to the county's USC Medical Center.   By the time Luisa arrived at the medical center she had lapsed into a partial coma.   Luisa was examined and treated in the emergency room by Dr. Gary Robbins (hereinafter Robbins).   The events which took place in the emergency room are in dispute, and appellants' version of these events forms the basis upon which the lawsuit was filed.

Appellants contend that as a result of Robbins' improper diagnosis of drug overdose, Robbins negligently delayed treating Luisa's head injuries and failed to expeditiously seek the assistance of a neurologist.   It is undisputed that Robbins' initial treatment of Luisa involved washing, or lavaging, Luisa's stomach, a procedure followed in drug overdose cases.   Soon thereafter, Luisa went into respiratory and then cardiac arrest.

Gaston testified that Luisa had breathing problems before the lavaging and that Luisa's breathing problems were known to Robbins, but Robbins failed to concern himself with Luisa's vital signs because Robbins was primarily concerned with the lavaging procedure.   Robbins testified to the contrary, namely that Luisa's breathing was normal both before and during the lavage.   Further, Robbins testified that even though he thought drugs might have been contributing to Luisa's condition, his primary diagnosis was of head injuries;  and that his belief that drugs might be involved was not implausable in light of the highly misleading incomplete report Gaston gave him of the events which had occurred after Luisa's accident.   As to Gaston's report, Robbins testified that he was given the impression Luisa had been unattended until shortly before her arrival at the hospital;  and further stated that Gaston failed to fully relate Luisa's symptoms of vomiting and paralysis, both symptoms which constitute significant evidence of brain injury.   Gaston testified to the contrary and that he told Robbins that Luisa had been attended to since the accident and therefore could not have had a drug overdose.

Ultimately, Luisa underwent brain surgery.   Nevertheless, she became virtually disabled with little ability to move, speak, chew, or control bodily functions.   Luisa never recovered, and died approximately one year later of a respiratory failure after food she had eaten earlier in the day became lodged in her trachea.   Respondents allege that Luisa sustained severe and irreparable injuries as a direct and proximate result of Robbins' negligent emergency treatment of Luisa.


On June 25, 1976, respondents propounded 15 interrogatories (hereinafter “I”) to appellants.   I–3 sought the names of persons who saw or cared for Luisa in the emergency room.   Appellants, in their answer to I–3, listed Robbins, Dr. Steven Agata, and “all others whose examination and care of Luisa is reflected in the records of USC Medical Center of the County of Los Angeles.”   The answer added also that:  “․ Defendants offer plaintiffs—pursuant to the provisions of Section 2030 of the California Code of Civil Procedure—a reasonable opportunity to examine and/or copy (at plaintiffs' expense) ․ the relevant records of said plaintiffs and/or their counsel to make appropriate arrangements with defense counsel.”   Respondents moved to compel further answers to I–3, among others.

By order entered September 1, 1976, the court denied respondents' motion as to I–3.   The court further denied respondents' motion to compel further answers as to interrogatories 5, 6, and 7 which sought the names and addresses of persons who saw or cared for Luisa in the hospital during the six days following Luisa's emergency room treatment.   Appellants' answers to these interrogatories had not listed any names, but again invited respondents to inspect hospital records.   Appellants' opposition to respondents' motions stated that with respect to I–3, 5, 6, and 7, a great number of persons had seen or cared for Luisa including doctors, nurses, technicians, therapists and attendants.   Appellants further argued that compiling the information requested in the interrogatories would place a “formidable and oppressive burden on appellants who are preoccupied—24 hours a day—with the care and treatment of untold numbers of needy patients.”

On March 30, 1981, the third day of trial proceedings (but before trial had actually commenced), appellants disclosed their discovery that Dr. John Grigsby (hereinafter Grigsby) had been present in the emergency examination room along with Robbins and Agata when Luisa was being treated.   The discovery was made when the county solicited Grigsby as an expert witness on emergency room procedures.   Upon learning of the case, Grigsby realized he had been present in the emergency room.   Apparently, Grigsby recalled the facts of the case even after five and one-half years, because of the highly unusual circumstances of a doctor bringing his own daughter to the emergency room.   Grigsby was evidently prepared to testify in detail to a version of the facts which concurred with Robbins' version.   Appellants thus sought to have Grigsby testify as a percipient witness.

Respondents brought a motion in limine to exclude Grigsby from testifying because Grigsby's name had been omitted in appellants' answer to I–3.   The trial court determined that its ruling on the motion would depend upon whether appellants' answer to I–3 was made in good faith or bad faith.   In order to decide this question, three persons responsible for answering I–3 were deposed during the second week of trial.   After reviewing the depositions, the trial court found that appellants had acted in bad faith by failing to make an adequate effort to learn the names of persons who saw or treated Luisa in the emergency room.   After finding bad faith, the trial court granted respondents' motion in limine to exclude Grigsby from testifying.

The trial court's ruling was based on the finding that appellants had a practice of referring only to patient records to ascertain the names of persons who saw or treated patients.   The deposition of Counselo Diaz, the person who originally verified the answer to I–3, revealed that even though Diaz believed there would have been other doctors and nurses present in the emergency room when Luisa was being treated, no effort was made beyond looking at patient records to determine the names of those other doctors and nurses.

Grigsby's name had not been identified in Luisa's medical records.   Appellants thus maintained that identifying Grigsby earlier would have required undertaking the unreasonable burden of first examining work schedule and time cards of about 400 persons and then interviewing those persons who worked either of the two shifts during which Luisa had been treated.

The court disagreed, and cited portions of the depositions indicating that less onerous investigatory procedures existed but were not utilized.1  Deeming appellants' practices of consulting only patient records an “inadequate” approach and a violation of Code of Civil Procedure section 2030, subdivision (d) which requires interrogatories to be answered fully and completely, the trial court held that because appellants had not acted in good faith, allowing Grigsby to testify at trial would be prejudicial to respondents.   It is upon this order excluding Grigsby's testimony that appellants now appeal.


Appellants' claim that the trial court did not apply the proper test for determining whether to exclude Grigsby's testimony, and that the exclusion was therefore prejudicial error.   According to appellants, a finding of bad faith conduct in answering interrogatories is an insufficient ground for barring testimony of a witness.   Exclusion is appropriate, argue appellants, only when a party has intentionally withheld or concealed a witness' name in response to an interrogatory.   In support of applying this intentional withholding standard, defendants rely on Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 105 Cal.Rptr. 276.

In Thoren, the Court of Appeal held that a trial court did not abuse its discretion by barring testimony of a witness whose name was willfully omitted from interrogatory answers.   The court found that counsel either previously knew of the existence of the witness, or else “deliberately refrained” from determining it until after the interrogatories were answered.   In either case, the court stated that the interrogatory answer omitting the witness' name was “willfully false.”   Because the court found that a willfully false answer to an interrogatory was the equivalent of no answer at all, the court held that the trial court had properly invoked the sanction of barring the witness' testimony.   The court concluded that an order precluding the testimony of a witness deliberately omitted from interrogatory answers was sustainable “as a sanction less than dismissal of the complaint which the trial court properly deemed just.”  (Thoren v. Johnston & Washer, supra.)

Appellants claim in the case at bar that because there was no intentional concealment involved, appellants' failure to disclose the witness' identity was not willful under the Thoren test.

 It is for the trial court to determine whether there has been a willful failure to disclose a witness' identity, and that determination will not be disturbed unless it is arbitrary or lacking in evidentiary support.   (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 782, 174 Cal.Rptr. 348;  Rangel v. Graybar Electric (1977) 70 Cal.App.3d 943, 139 Cal.Rptr. 191.   See also Fairfield v. Superior Court (1966) 246 Cal.App.2d 113, 54 Cal.Rptr. 721.)

In the case at bench, the trial court specifically found that although appellants may not have “intentionally concealed” Grigsby's name, the appellants nevertheless acted in bad faith by failing to make an adequate effort to learn the identity of witnesses whose names were sought in the interrogatories.   This finding was based on testimony elicited in three depositions of the persons who originally were responsible for answering the interrogatories.   After reviewing these depositions, the court found that even though the appellants were aware that other witnesses would have been present, and even though a few, simple investigatory measures could have been undertaken, appellants failed to make any effort beyond looking at patient records to learn other witnesses' identities.

There is the additional peculiarity that appellants were unaware for five and one-half years of Grigsby's presence in the emergency room, even though Grigsby was present for the duration of the emergency room treatment, and in such close proximity as to recall in detail each aspect of the treatment.   That none of the known witnesses had ever mentioned Grigsby's name is even more peculiar and arouses suspicion as to whether Grigsby's discovery was truly happenstance.   However, because there were no findings on the matter, it must be assumed that the discovery of Grigsby's identity was in fact happenstance.   Still, it must be said that appellants would not have found themselves in a position of Grigsby's testimony being excluded had appellants made a more diligent effort to learn of witnesses' identities in the first place.

 The appellants' minimal effort to learn the names of witnesses to such a crucial event is tantamount to “deliberately refraining” from determining witnesses' identities.   Such conduct thus satisfies the Thoren test for “willfulness.”

 This court agrees with appellants that interrogatory answers are not intended to be “traps” which prevent persons from producing subsequently discovered facts.  (Singer v. Superior Court (1960) 54 Cal.2d 318, 5 Cal.Rptr. 697, 353 P.2d 305.)   Eliminating surprise at trial is one of the main purposes of civil discovery.  (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266.)   Discovery rules are designed to accomplish this purpose by providing an effective means of detecting and exposing “false, fraudulent and sham claims and defenses.”   (Greyhound, supra.)

 Justice may sometimes require binding parties to interrogatory answers as a means of accomplishing such a purpose.   A party who willfully omits a witness' name in an interrogatory answers subjects the adversary to unfair surprise at trial.  (Thoren v. Johnston & Washer, supra.)   Allowing testimony of witnesses whose identities were willfully omitted from interrogatory answers would thus be clearly antithetical to the purposes of discovery.

Another of appellants' contentions is that a sanction so harsh as exclusion is inappropriate absent a showing of unavoidable prejudice to an adversary's case.   Appellants claim that allowing a critical defense witness to testify would not have resulted in any actual prejudice to respondents, since testimony which is merely harmful to a party's case does not constitute prejudice.   Further, appellants insist that respondents could have cured any possible prejudice by seeking a continuance to take Grigsby's testimony.

 We agree with appellants to the extent that a decision to exclude testimony of a newly discovered witness may include a consideration not only of whether the answering party's omission was willful, but also of whether the party propounding the interrogatories would be prejudiced.  (Thoren v. Johnston & Washer, supra, at p. 575, 105 Cal.Rptr. 276;  Meyers v. Pennypack Woods Home Ownership Assn. (3d Cir.1977) 559 F.2d 894.)

 We disagree as to appellants' conclusion that respondents would not be incurably prejudiced.   Grigsby's name was not disclosed until the third day of trial proceedings.   Both sides had spent over five years preparing their case.   If Grigsby's testimony, which at best could only have been corroborative of Robbins' testimony, was of such importance to appellants, it most certainly would have been prejudicial to respondents who would not have had sufficient time to investigate and prepare for cross-examination.

 The court, in Thoren, confronted a similar situation and stated:

“The situation here is not one where the answer to the interrogatory is in the nature of evidence so that impeachment at trial might be a satisfactory remedy if the interrogated party produces testimony contrary to his pretrial response.   Nor is the situation here one of an inadvertently misleading answer where justice might dictate that, upon a proper showing, the answering party be relieved of his default and the interrogating party be protected by a continuance.  (See Singer v. Superior Court, 54 Cal.2d 318, 325 [5 Cal.Rptr. 697, 353 P.2d 305].)  Here the answer of appellant to interrogatory B–2 went directly to respondents' preparation for trial and seriously impeded it.   Here appellant can make no case to be relieved of his default if the trial court's finding that the false answer was willful is supported by substantial evidence.   Here, also, the falsity of the answer was not discovered until a jury had been impaneled, a situation militating against solution of the problem by a continuance.”

Where a witness is not introduced until trial proceedings have already begun, and the witness' testimony is of a nature essential to the facts being contested at trial, prejudice to the adversary is inherent.   The adversary has been deprived of the chance to investigate and develop evidence in opposition.   As was stated in Thoren, supra, at page 274, 105 Cal.Rptr. 276, the respondents have been deprived of “the opportunity of preparation which could disclose whether the witness will tell the truth and whether a claim based upon the witness' testimony is a sham, false, or fraudulent.”   A mere continuance can not cure a problem of such scope.

Appellants next argue that excluding Grigsby's testimony improperly reversed the earlier ruling of another judge.   Appellants view the denial of respondents' 1976 motion to compel further answers to I–3 as tantamount to a binding ruling that the answers thereto were adequate.   Further, appellants assert that they justifiably relied on the sufficiency of their interrogatory answers for four and one-half years.

 The 1976 denial was a ruling on whether appellants' answer was sufficient under the circumstances.   Appellants' good faith as to their specific capabilities of answering I–3 was not then at issue.   Although the law and motion court did not specify its grounds for denying the motion to compel, it would seem that it accepted appellants' argument of being unreasonably burdened as to all four interrogatories then at issue.   The implication is that the trial court ruling was not based on a specific decision as to the reasonableness or difficulty of answering I–3 per se, but was instead based on an understanding of the collective burden of answering interrogatories seeking names of all persons who saw or cared for Luisa at the hospital over a six and one-half day period.   In light of new facts and circumstances which arose, it became necessary for the court to determine a question of a different scope, namely, whether or not the appellant had made any effort to answer I–3 as fully as it was capable of answering that interrogatory.

 Further, even if the effect of granting respondents' motion in limine was to reverse the denial of respondents' 1976 motion to compel, a ruling on an ordinary motion is not “res judicata.”  (See 4 Witkin, California Procedure (2d ed., 1983 supp.) section 28A, page 11, citing Hennigan v. United Pac. Ins. Co. (1975) 53 Cal.App.3d 1, 125 Cal.Rptr. 408;  Lopez v. Larson (1979) 91 Cal.App.3d 383, 153 Cal.Rptr. 912;  Greenberg v. Superior Court (1982) 131 Cal.App.3d 441, 182 Cal.Rptr. 466.)   The trial court has power to reconsider an interim ruling on a motion where no final judgment has been rendered.  (Travelers Ins. Co. v. Superior Court (1977) 65 Cal.App.3d 751, 135 Cal.Rptr. 579.)

 There is an exception to this rule.   A pretrial ruling on an ordinary motion may bind a second judge to the ruling where, as a result of the original ruling, a party has performed affirmative acts irreversibly affecting trial preparation.   For example, in Markwell v. Sykes (1959) 173 Cal.App.2d 642, 343 P.2d 769, a witness had fully testified at a deposition in compliance with a first judge's order.   The trial judge later ruled that the witness could claim a public officer privilege.   The appellate court held that the trial judge's ruling was error because the witness, having already fully testified on deposition, had thereby waived any future claim of privilege.   The court reasoned that although a second judge is not bound by a first judge's ruling “he cannot undo what has been done pursuant to it.”  (Markwell v. Sykes, supra, at p. 650, 343 P.2d 769.)

 Appellants' reliance on the sufficiency of their interrogatory answers does not fall within this Markwell exception.   A continued failure to investigate is not irreversible and can not be likened to an irrevocable disclosure.   Appellants had four and one-half more years to prepare for trial.   The trial court's denial of respondents' motion to compel further answers did not bar appellants from engaging in a fuller investigation to learn the identity of additional witnesses.


Appellants assert that respondents' counsel improperly implied that Robbins' original diagnosis of possible drug overdose was due to Robbins' bias against Hispanics.   The alleged misconduct took the form of two incidents:  First, the cross-examination of Robbins in which respondents' counsel asked “․ is it true that at County USC most of the people who had drug abuse in the emergency rooms were Latin or black?”   When appellants objected to this question, the court stated that the question “may go to bias.”   Nevertheless, appellants' objection was overruled and respondents' counsel then proceeded to ask:  “Doctor, was the fact that the girl was of Latin origin, did that lead you to put more emphasis on your diagnosis of drug ingestation?”   Dr. Robbins answered:  “In no way.”

The second incident occurred during closing argument in which plaintiffs' counsel stated to the jury:

“See, I think Luisa Herrera made a drastic mistake by going to that hospital, ladies and gentlemen.   They see so many drug overdoses, so when this girl named ‘Herrera’ with a father with this heavy accent, comes in and says, ‘I'm a doctor.   This is the history.   Look at the signs.   Call a neurosurgeon.   This is an epidural hematoma,’ Dr. Robbins just figured it was just another case of overdose.   And he ignored his medical training.   He ignored his experience.   And he just assumed.”

 Generally, a party may not raise an issue of misconduct based upon argument to the jury where no objection to the alleged improper argument was made and no admonition was requested.  (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 303, 85 Cal.Rptr. 444, 466 P.2d 996.)   However, no objection is necessary if such would not cure the misconduct.   (Kolaric v. Kaufman (1968) 261 Cal.App.2d 20, 28, 67 Cal.Rptr. 729.)

As appellants point out, at no time in the trial was any evidence presented that Robbins was prejudiced against Hispanics.   As to the first incident, it is quite clear that Dr. Robbins' answer to the question was indicative that he was not biased against people of Latin origin.   Such a reading of the question and answer militates against an intended slur relating to nationality or background.   As to the second incident, the conduct of respondents' counsel was equivocal.   The question remains whether either or both incidents amounted to or caused a “miscarriage of justice.”

 Prejudicial and reversible error is established if there is a reasonable probability that the absence of the error would have produced a result more favorable to the appellants.  (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 746, 144 Cal.Rptr. 380, 575 P.2d 1162;  Rimmele v. Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 131, 120 Cal.Rptr. 39;  Rash v. City and County of San Francisco (1962) 200 Cal.App.2d 199, 205, 19 Cal.Rptr. 199.)

 As we have heretofore viewed the aforesaid incidents, even considering counsel's ill advised argument to the jury, we are neither ready nor inclined to conclude that such incidents amounted to, or caused, a miscarriage of justice or any appreciable prejudicial effect on the jury.


The trial court granted the motion in limine on the ground that the appellants did not answer I–3 in good faith and that to permit Dr. Grigsby to testify at this time would be prejudicial to the respondents.   The trial court concluded that “bad faith, in the answer to I–3 of said appellants is shown clearly.”   The practice of appellants in answering interrogatories appears to be somewhat casual as evidenced by the deposition of Diaz in which she indicated that it was “not the practice” in answering interrogatories to utilize all sources of information, but only to utilize patient records.   Appellants' minimal effort to learn witnesses' names to such a crucial event is tantamount to “deliberatively refraining” from determining witnesses' identities.


The judgment of the trial court is affirmed.



1.   For example, appellants could have contacted the single physician in charge of the emergency room for that day.

SWINK, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

STEPHENS, Acting P.J., and HASTINGS, J., concur. Hearing denied;  BIRD, C.J., dissenting.

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