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Luzano v. Mann11/25/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In these consolidated matters, Mary Luzano (appellant) appeals after a jury found in favor of defendants Roger Mann, M.D. (respondent); Jeffrey Mann, M.D. (Dr. Jeffrey Mann); and The Surgery Center in appellant's medical malpractice action. In the first appeal, she contends the trial court erred in failing to grant her motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to her medical negligence, fraud, and battery causes of action, and that the court erred in granting the defendants' motion for partial non-suit as to her battery cause of action. She further contends the trial court erred by admitting expert opinion testimony over her Kelly-Frye objection, by denying her motion to inspect respondent's computerized medical records, and by denying her motion during trial to file an amended complaint.
In the second appeal, appellant challenges the trial court's order awarding costs, including expert witness fees, to respondent. Appellant contends the trial court did not have jurisdiction to make the costs order because appellant had already filed her notice of appeal from the underlying judgment when the costs order was entered.
We shall affirm the judgment and the trial court's cost order.
PROCEDURAL BACKGROUND
On November 24, 1997, appellant filed a complaint for damages against respondent; Dr. Jeffrey Mann ; and The Surgery Center, alleging a single cause of action for medical malpractice. The complaint alleged that respondent and Dr. Jeffrey Mann negligently recommended inappropriate bunion surgery and performed surgery improperly in that they negligently left a screw protruding from appellant's foot and cut her extensor hallucis longus (EHL) tendon.
With the trial court's permission, on August 27, 1999, appellant filed a first amended complaint containing causes of action for (1) medical malpractice, (2) battery, (3) fraud, and (4) battery for failure to provide informed consent. The second and third causes of action alleged that respondent had represented that he would be appellant's surgeon, but that in fact Dr. Jeffrey Mann performed the surgery. The fourth cause of action alleged that appellant was not informed preoperatively of the risks from the surgery that her EHL tendon might be severed and that she might develop a transfer lesion (a callus) under her foot.
On October 26, 1999, the trial court, inter alia, sustained the defendants' demurrer to the fourth cause of action in the first amended complaint, finding the cause of action was "duplicitous of other causes of action alleged in Complaint." On November 2, 1999, appellant filed a second amended complaint, deleting the fourth cause of action for battery.
On December 2, 1999, appellant attempted to amend her complaint again to add the fourth cause of action for battery for failure to provide informed consent. The court denied her motion for leave to file a third amended complaint, again finding it duplicative of the first cause of action for negligence.
On March 4, 2002, the parties appeared for the jury trial. On March 5, 2002, appellant again moved for leave to file a "fifth" amended complaint. The court never ruled on that motion.
On March 26, 2002, during trial, appellant moved for leave to file a "sixth" amended complaint. The proposed "sixt
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