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Brumfield v. Richardson2/19/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs Daniel T. Brumfield (Dr. Brumfield) and his wife, plaintiff Deanna Brumfield (together the Brumfields), appeal from a judgment entered in favor of defendant and respondent G. Lynn Richardson (Richardson), a veterinary surgeon, following a jury trial. The Brumfields owned a thoroughbred show horse that suffered an inguinal injury and scrotal hernia while competing at a horse show. The Brumfields decided to have the hernia repaired and contacted Richardson.
Richardson performed a suture-free, standing castration procedure, but the horse suffered another herniation and an obstructed bowel during recovery, resulting in a lengthy hospitalization, surgical removal of a portion of the bowel, and loss in the horse's value.
The Brumfields sued Richardson, alleging counts of fraud, breach of oral contract, and professional negligence. In their amended complaint, the Brumfields based these three counts on allegations that Richardson orally promised to repair the scrotal hernia by performing a standing castration using a technique that would induce swelling and scarring to prevent postoperative herniation, and also promised to order close post-surgical observation of the horse to safeguard against such herniation. They further alleged that Richardson defrauded them, breached the alleged oral agreement, and was negligent by performing only a standard open castration without inducing swelling and scarring, and by failing to issue orders for close postoperative observation. They also alleged that Richardson defrauded them by misrepresenting the number of scrotal hernias he had repaired using the promised castration method.
At trial, after the defense rested, the court on its own motion decided not to instruct the jury with respect to the Brumfields' claims for fraud and breach of contract, thereby barring those claims, on the ground of insufficiency of evidence and because it appeared to the court that this was a veterinary malpractice case. The court instructed the jury under modified versions of BAJI Nos. 6.10 and 6.10.5 (discussed, post) that it is the duty of a veterinarian to obtain the consent of an animal's owner before operating on an animal, and it is a violation of a veterinarian's professional duties to obtain consent for one type of operation and then perform a substantially different operation. The jury returned a special verdict in favor of the defense on the Brumfields' cause of action for professional negligence, finding only that Richardson was not negligent.
The Brumfields appeal, contending the court committed reversible error by refusing to give jury instructions on their claims for fraud and breach of contract as they presented substantial evidence in support of both claims. They also contend that even if the evidence adduced at trial were insufficient to support these claims, the judgment should be reversed because the court made prejudicial evidentiary rulings that prevented the Brumfields from presenting additional evidence in support of those claims. We reverse the portion of the judgment dismissing the Brumfields' fraudulent misrepresentation cause of action to the extent it is based on their allegation that Richardson misrepresented his veterinarian experience, and otherwise affirm the judgment.
FACTUAL BACKGROUND
John Taylor (the horse) was born in 1991 and is
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