Wibbeler v. Kamath CA1/3

Filed 8/12/21 Wibbeler v. Kamath CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

RICHARD WIBBELER, et. al.,

Plaintiffs and Respondents, A159347

v.
(County of Solano
NANDAN V. KAMATH, M.D., et. Super. Ct. No. FCS048266)
al.,

Defendants and Appellants.

In this medical malpractice action, defendants and appellants
Nandan V. Kamath, M.D., and Nandan V. Kamath, M.D., a
Professional Corporation (collectively “Kamath”), appeal from an order
granting a new trial after the jury found Kamath was not negligent in
the care and treatment of plaintiff Richard Wibbeler. The trial court
granted the new trial based upon its finding that during deliberations a
juror, a registered nurse, had engaged in prejudicial misconduct by
injecting external information and specialized knowledge regarding an
issue key to the jury’s negligence determination. We affirm.

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 FACTUAL AND PROCEDURAL BACKGROUND
A. Background
In January 2016, Kamath removed a lipoma (fatty tumor) from
the upper right arm of plaintiff Richard Wibbeler (“Wibbeler”).
Kamath made an incision in the posterior (rear) of Wibbeler’s upper
arm, removed the lipoma, sutured the incision, and bandaged the arm.
Wibbeler was told to return in 17 days for his first post-surgery
appointment. Wibbeler testified that, since he did not receive either
verbal or written wound care instructions after the procedure, he kept
the incision covered with the post-incision bandage.
Nine days later, Wibbeler was taken to a medical center by
ambulance at approximately 10 a.m. The emergency room doctors
initially diagnosed Wibbeler as suffering with sepsis, pneumonia, an
acute kidney issue, or damage to his heart. At 1:00 p.m., Wibbeler was
admitted to the medical center’s ICU for treatment for pneumonia.
Several hours later, at 6:00 p.m., the doctors ordered a surgical
consultation to evaluate a lesion on his right arm. Wibbeler was
diagnosed with a necrotizing soft tissue infection in his right arm and
taken to surgery to remove the dead tissue. The surgeons first treated
“a ruptured bullae” – the fluid-filled blister that had burst on
Wibbeler’s bicep – and found the tissue deep in the arm under the bicep
had been destroyed by the infection. After stripping away the dead
tissue, the surgeons “turned to the site of the previous lipoma excision.”
When they removed the sutures from the incision, the wound fell open
and pus came out, which was then swabbed and sent to be cultured.
Wibbeler’s condition continued to deteriorate and the surgeons were

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required to amputate Wibbeler’s arms and legs to halt the spread of the
infection.
Wibbeler and his wife filed this action, naming as defendants
Nandan V. Kamath, M.D., his professional corporation Nandan V.
Kamath, M.D., and his “medical corporation” Vacaville Dermatology.
At trial, it was plaintiffs’ position that Kamath was negligent for failing
to provide Wibbeler with proper wound care instructions, as a result he
had not removed the post-incision bandage from his arm, causing
bacterial growth in the wound, which was a substantial factor in
causing the infection that resulted in the loss of his limbs. Wibbeler’s
expert opined that he would not have gotten an infection had he been
given proper wound care instructions and followed those instructions.
Kamath contended Wibbeler received both written and verbal wound
care instructions, but that wound care was irrelevant as the growth of
bacteria originated in the respiratory system (not the wound) and
spread throughout the body through the bloodstream.
A key evidentiary issue related to whether wound care
instructions had been given to Wibbeler was whether Wibbeler was
wearing a bandage over his sutured incision when he was taken to the
medical center by ambulance. Each side relied, in pertinent part, on
medical center records to support their position. Plaintiffs asked the
jury to find that Wibbeler was wearing the post-incision bandage based
on a nurse’s comments in the ICU record, under the heading “Transfer
Receiving Note (Nursing)”: “Dressing from home taken down, area
marked by MD, non adherent dressing, 4 x 4 and occlusive dressing
applied.” (Italics in original.) Kamath asked the jury to find that
Wibbeler was not wearing the post-incision bandage based on a nurse’s

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comments in the emergency room record, under the heading
“Initial/Bedside Nursing Assessment”: “right upper posterior arm noted
to have stitches. Pt. reports lump removal on site. skin tear noted on
the right upper arm as well. No dressing noted. bruising noted on the
right upper inner arm. Right upper arm noted to be swollen, hard to
touch with TTP. Bracial and radial pulses noted. CHS intact, Full ROm
noted.” (Italics in original.) While the parties questioned their experts
concerning the meaning of these comments, neither party called the
medical center employees who had made the actual entries.
After two days of deliberations, one juror was excused and an
alternate juror was seated. The jurors were directed to disregard their
earlier deliberations and to begin anew as if those deliberations had not
taken place. After approximately three hours of deliberations, the
jurors returned with a 9-3 verdict in favor of Kamath.
B. New Trial Proceeding
Plaintiffs filed a notice of intent to move for a new trial under
Code of Civil Procedure1 section 657 for juror misconduct.2 Plaintiffs
alleged that one juror, a registered nurse, had committed misconduct
by improperly injecting her opinions explicitly based on her specialized
knowledge and experience working with doctors and in emergency
rooms.

1
Undesignated statutory references are to the Code of Civil
Procedure.
2 Although the motion for new trial was based on multiple grounds,
the hearing on the motion focused on juror misconduct, which was the
sole basis for the trial court’s order. On appeal, plaintiffs do not seek
affirmance of the new trial order on any basis other than juror
misconduct. Accordingly, we do not address other bases for relief
asserted in the motion for a new trial.

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 In support of the motion, plaintiffs submitted the affidavit of
Juror W.R.,3 who averred that “[s]tarting early in our deliberations and
continuing throughout the process,” the nurse juror “brought in her
own personal experience as an RN and . . . expressed her nursing
opinions to the other jurors on various issues. As an example, the
nurse juror “talked about her experience as a nurse when a patient is
brought into the emergency room by ambulance and how it is a chaotic
situation with a lot of eyes on the patient. In this regard she . . . stated
that had a bandage been on Mr. Wibbeler’s arm at the time he was
brought into the ER then that (the presence of a bandage) would have
been documented at the time of his admission to the Emergency
Department.”
After hearing counsels’ arguments and taking the matter under
submission, the court filed its order granting the motion for a new trial.
The court began by acknowledging the principle of law that “[i]t is
unrealistic for jurors not to bring their backgrounds and experiences
into deliberations, but they should not present new evidence.” The
court then held, in pertinent part, that the nurse juror’s statement
regarding the documentation of patient information in the emergency
room record, as set forth in Juror W.R.’s declaration, was “specifically
the kind . . . of specialized information that is appropriately
characterized as ‘purported expert rebuttal,’ ” and constituted
prohibited juror misconduct under Nodal v. CalWest Rain, Inc. (2019)
37 Cal.App.5th 607.

3
Pursuant to the California Rules of Court, rule 8.90, governing
“Privacy in Opinions,” we refer to the juror by initials.

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 The court also found Juror W.R.’s specific representations were
more credible than the generalized denials of the nurse juror who had
asserted, among other things, that she “ ‘never referred to or told the
jury to consider any “outside” information but limited [her] comments
only to the evidence presented at trial.’ ” The court therefore found the
nurse juror had engaged in misconduct in injecting external
information and specialized knowledge by her statement that, “Had a
bandage been on Mr. Wibbeler’s arm at the time he was brought into
the ER then that (the presence of the bandage) would have been
documented at the time of his admission to the Emergency
Department.” The court concluded the misconduct was prejudicial
because “[a] key issue in the jury’s determination of whether negligence
occurred was whether [Kamath] gave Plaintiffs any instructions before
discharging Plaintiff Richard Wibbeler from surgery.”
DISCUSSION
I. Applicable Law
“A verdict may be vacated, in whole or in part, on a motion for a
new trial because of juror misconduct that materially affected the
substantial rights of a party. (Code Civ. Proc., § 657, subd. (2).) A
party moving for a new trial on the ground of juror misconduct must
establish both that misconduct occurred and that the misconduct was
prejudicial.” (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th
42, 57.)
In ruling on a motion for a new trial based on juror misconduct
the trial court “ ‘must undertake a three-step inquiry. [Citation.] First,
it must determine whether the affidavits supporting the motion are
admissible. (Evid. Code, § 1150.) If the evidence is admissible, the

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trial court must determine whether the facts establish misconduct.
[Citation.] Lastly, assuming misconduct, the trial court must
determine whether the misconduct was prejudicial.’ ” (Whitlock v.
Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160, quoting People v.
Dorsey (1995) 34 Cal.App.4th 694, 703-704.)
II. Trial Court’s Finding of Juror Misconduct
Kamath does not challenge the court’s findings as to what the
nurse juror said during deliberations, but contends it was not
misconduct. We do not address the parties’ conflicting arguments as to
the standard of review concerning the trial court’s misconduct finding
as our conclusion remains the same. Even if we conduct an
independent review of whether the facts constitute misconduct as “a
legal question” (People v. Collins (2010) 49 Cal.4th 175, 242), as
Kamath requests, we conclude the nurse juror’s statement regarding
the documentation of patient information in the emergency room record
constitutes misconduct.
It is well settled that “ ‘[i]t is not improper for a juror, regardless
of his or her educational or employment background, to express an
opinion on a technical subject, so long as the opinion is based on the
evidence at trial. Jurors’ views of the evidence, moreover, are
necessarily informed by their life experiences, including their education
and professional work. A juror, however, should not discuss an opinion
explicitly based on specialized information obtained from outside
sources. Such injection of external information in the form of a juror’s
own claim to expertise or specialized knowledge of a matter at issue is
misconduct.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1265 (Steele),
quoting In re Malone (1996) 12 Cal.4th 935, 963, fn. omitted.) In other

7
words, “[j]urors are not supposed to . . . communicate to fellow jurors
information from sources outside the evidence presented in court.
[Citation.] If they do, they are guilty of misconduct.” (Lankster v.
Alpha Beta Co. (1993) 15 Cal.App.4th 678, 682.) And, as Kamath
concedes, jurors may not discuss new facts that offer other jurors “any
basis for deciding the case other than the evidence and testimony
presented at trial.” (People v San Nicolas (2004) 34 Cal.4th 614, 650
(San Nicolas).)
In evaluating whether the nurse juror’s statement constituted
misconduct, the trial court appropriately considered the juror’s specific
statement itself and disregarded any assertion as to the juror’s intent
in making the statement that was inadmissible. (Evid. Code, §1150.4)
Despite Kamath’s arguments to the contrary, the nurse juror’s
statement regarding the documentation of patient information in the
emergency room record does not indicate that it was her attempt “to
make sense of the discrepant records during deliberations.” Rather, the
record demonstrates the nurse juror’s statement actually filled an
evidentiary gap as neither party produced as trial witnesses the nurses
who had recorded the comments in the emergency room medical record.
Indeed, the nurse juror’s statement “made to [her] fellow jurors
interjected improper ‘evidence’ at this most critical point in the case.

4
Evidence Code Section 1150, subd. (a) provides: “Upon an inquiry
as to the validity of a verdict, any otherwise admissible evidence may
be received as to statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of such a character as
is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or
event upon a juror either in influencing him to assent to or dissent from
the verdict or concerning the mental processes by which it was
determined.”

8
Had [the nurse juror’s] communication been revealed in open court,
evidence could possibly have been introduced” regarding the protocols
to be followed in documenting patient information in the emergency
room record. (Smith v. Covell (1980) 100 Cal.App.3d 947, 954.) “By
communicating [her] ‘evidence’ to the jurors outside the court, [the
nurse juror] precluded the plaintiffs from testing it or making an
answer and thus deprived the plaintiffs of due process of law.” (Ibid.;
see Higgins v. Los Angeles Gas & Elec. Co. (1911) 159 Cal. 651, 656
[“[i]t is a fundamental rule that all evidence shall be taken in open
court and that each party to a controversy shall have knowledge of, and
thus be enabled to meet and answer, any evidence brought against
him”].)
In evaluating the misconduct finding, Kamath asks to consider
two decisions “to frame the analysis”: (1) Nodal v. CalWest Rain, Inc.,
supra, 37 Cal.App.5th 607 (Nodal), cited by the trial court; and (2) San
Nicolas, supra, 34 Cal.4th 614. In Nodal, the “appeal follow[ed] a five-
week trial in which [the plaintiff] claimed that a steel nipple was
improperly screwed into a plastic bushing on a vineyard irrigation
system. The bushing failed, causing a 20-pound valve assembly to blow
off a pump station pipe and strike [the plaintiff] in the head. [The
plaintiff] sued on a theory of negligent design and construction. The
jury returned a nine-to-three special verdict that defendant CalWest
Rain, Inc. (CalWest) was not negligent.” (37 Cal.App.5th at p. 609.)
The plaintiff filed a motion for a new trial, based on deliberation
statements made by Juror Reed, a pipefitter with 35 years of
experience, who stated that he had “ ‘ “been doing this for years” ’ ”;
that “ ‘ “[a]nybody would have put [the system] together the exact same

9
way” ’ ”; and that the defendant “ ‘ “installed the system like everybody
in the industry does.” ’ ” (Id. at p. 610.) The trial court found Juror
Reed’s remarks constituted misconduct as they introduced facts not in
evidence but deemed them not prejudicial because the jurors could
draw different inferences from his remarks. (Id. at p. 611.) The
appellate court reversed as the juror’s misconduct raised a presumption
of prejudice that had not been rebutted: “Jurors are not permitted to
inject extraneous evidence, standards of care, or defense theories into
the deliberations. Reed said the CalWest design and construction met
the ‘industry standard’ and that ‘[a]nybody would have put [the system]
together the exact same way. . . .’ There was no evidence of that. [The
pipefitter juror] vouched for the design and construction based on his
expertise as a pipefitter and farmer . . . . [Citations.] [¶] It is well
settled that a juror may not ‘discuss an opinion explicitly based on
specialized information obtained from outside sources. Such injection
of external information in the form of a juror’s own claim to expertise or
specialized knowledge of a matter at issue is misconduct. [Citations.]’
[Citation.] [McDonald v. Southern Pacific Transportation Co. (1999)]
71 Cal.App.4th 256 is illustrative and involved a nine-to-three special
verdict for the defendant train company. A juror who worked as a
professional transportation consultant introduced new evidence in the
nature of expert opinion during jury deliberations. (Id. at pp. 263-264.)
The juror talked about the placement of crossing gate sensors, their
operation and the reason why gates were not or could not be installed
at the crossing. The misconduct was ‘clear and severe’ and ‘brought to
bear not common knowledge but purported expert (and ex parte)
rebuttal.’ (Id. at pp. 267, 265.) [¶] Like the ‘rogue juror’ in McDonald,

10
[the pipefitter juror] told the jury about the industry standard [and]
causation, . . . . He said, ‘ “I know what I’m voting no matter what.” ’
‘[I]t can be fairly assumed that the opinions held by [this] Juror
certainly influenced his vote on the first and crucial question’ of
whether CalWest was negligent.” (Nodal, supra, at pp. 611-612.)
In San Nicolas, the defendant was charged with murder of his
wife and the rape and murder of his wife’s 9-year-old niece. (34 Cal.4th
at p. 624.) One of the major issues was whether the wife’s niece was
dead at the time of the rape. (Id. at p. 648.) A juror, who was a
registered nurse, disclosed during deliberations that she was a nurse
and explained a number of medical issues relating to blood pressure,
circulation, “ ‘shunting,’ ” the manner in which the body would have
directed the blood after the stab wounds were inflicted, and “ ‘provided
clarification of [the pathologist’s] testimony.’ ” (Id. at p. 648.) In
affirming the trial court’s denial of a new trial based on juror
misconduct, our Supreme Court found that “the evidence presented in
support of defendant’s motion for a new trial [did] not show [the
registered nurse] offered the jurors any basis for deciding the case
other than the evidence and testimony presented at trial. No
declaration suggests that she made any assertion inconsistent with the
properly admitted evidence and testimony. Indeed, the remarks
attributed to her . . . are consistent with the trial testimony of the
pathologist, who expounded at length on the concept of blood flow,
circulations, and the meaning of ‘shunting.’ The trial court did not
abuse its discretion in ruling that [the registered nurse’s] explanation
of blood evidence was not misconduct.” (Id. at p. 650.)

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 Here, the nurse juror’s misconduct was closer to the facts in
Nodal than in San Nicolas. As we have noted, there was no evidence
concerning the protocol for documenting patient information in the
emergency room record. Thus, the nurse juror’s statement “crossed the
line into misconduct” by filling an evidentiary gap and offering the
jurors a basis for deciding the case on additional information she had
learned while working as a registered nurse in an emergency room
setting – that the emergency room record would have documented the
presence of a bandage on Wibbeler’s arm if a bandage had been present
on his arm when he was admitted in the emergency room.
In sum, although we acknowledge the “fine line . . . between
using one’s background in analyzing the evidence, which is appropriate,
. . . and injecting ‘an opinion explicitly based on specialized information
from outside sources,’ which . . . . [is] misconduct” (Steele, supra, 27
Cal.4th at p. 1266), we conclude under any standard of review that the
trial court did not err in finding that the nurse juror’s statement
regarding the documentation of patient information in the emergency
room record constituted misconduct. Because there is substantial
evidence supporting the court’s misconduct finding, we see no reason to
disturb the new trial order on that basis.5
III. Trial Court’s Finding of Prejudice
The parties agree, and we concur, that the trial court’s prejudice
finding is reviewed for an abuse of discretion. (People v. Ault (2004) 33
Cal.4th 1250, 1272 (Ault).) Kamath further contends that in evaluating
for abuse of discretion, we should “review the entire record . . . to

5 In light of our determination, we do not address whether other
statements attributed to the nurse juror constituted misconduct.

12
determine independently whether the act of misconduct, if it occurred,
prevented the complaining party from having a fair trial,” quoting
English v. Lin (1994) 26 Cal.App.4th 1358 at page 1364 (italics added).
However, the independent review discussed in English v. Lin, supra, at
page 1364, applies only in appeals from the denial of a new trial
motion. Since English v. Lin was decided, our Supreme Court has
clarified that when a trial court, “after examining all the relevant
circumstances,” grants a new trial based on proven juror misconduct,
the prejudice finding “is not subject to independent or de novo review
on appeal, but may be affirmed unless it constituted an abuse of
discretion.” (Ault, supra, at p. 1255.)
In evaluating for an abuse of discretion, “the weight of modern
California authority is that the trial court’s order granting a new trial
will not be disturbed if fairly debatable, even if the reviewing court
itself, addressing the issues de novo, would not have found a basis for
reversal. [Citations.] In particular, the traditional rule is that the
reviewing court will not substitute its judgment for the trial court’s
determination that error was prejudicial, and thus warrants a new
trial.” (Ault, supra, 33 Cal.4th at pp. 1262-1263.)
Kamath contends the trial court erred in granting a new trial
because the statement regarding the documentation of patient
information in the emergency room record was “plainly reflected in the
trial testimony,” and did not inject anything new or inconsistent into
the jury’s deliberations. However, applying the deferential abuse of
discretion standard, we conclude the court could properly reject those
arguments. “The deference due orders granting new trials is commonly
justified on grounds that ‘[t]he trial judge is familiar with the evidence,

13
witnesses and proceedings, and is therefore in the best position to
determine whether, in view of all the circumstances, justice demands a
retrial. . . . The presumptions on appeal are in favor of the order, and
[as an appellate court we do] not independently redetermine the
question whether an error was prejudicial. . . . Review is limited to the
inquiry whether there was any support for the trial judge’s ruling, and
the order will be reversed only on a strong affirmative showing of abuse
of discretion. [Citation.].’ [Citations.] Moreover, [our Supreme Court
has] emphasized, . . an order granting a new trial does not finally
dispose of any party’s rights. [Citation.]” (Ault, supra, 33 Cal.4th at p.
1261; italics in original.)
Nor do we see any merit to Kamath’s contention that any
prejudice was neutralized when an alternate juror was empaneled and
the court instructed the jurors to disregard all prior deliberations and
begin deliberations anew. Even if the nurse juror did not repeat her
statement regarding the documentation of patient information in the
emergency room record during the renewed deliberations, the trial
court could fairly assume the statement influenced the nurse juror’s
decision to vote with the majority, just nine of twelve, in finding
Kamath was not negligent. (Nissan Motor Acceptance Cases (2021) 63
Cal.App.5th 793, 822.) Because the verdict was nine to three, the trial
court could find that a new trial was warranted because a different
verdict may have been rendered without the misconduct. (Ibid.)
IV. Public Policy Considerations
Kamath also argues that public policy considerations mandate
reversal of the new trial order because the order impinges on a juror’s
right to rely on her relevant past experiences and threatens the

14
integrity of the jury system by encouraging litigants to dig into the
subjective reasoning processes of jurors to find how “ ‘specialized
knowledge’ ” may have affected their deliberations. We disagree.
Regardless of how the Wibbelers described the conduct of the
nurse juror in their motion papers, the trial court carefully focused
solely on the juror’s statements made during deliberations, and not her
subjective reasoning process or any purported “artificial and ad
hominem attacks,” as Kamath suggests. Moreover, for the reasons
explained above, there is substantial evidence supporting the trial
court’s finding that the nurse juror’s statement regarding the
documentation of patient information in the emergency room record
was prejudicial misconduct supporting a new trial. On this record, we
must reject Kamath’s contention that an affirmance of the new trial
court order impinges on the rights of jurors or poses a threat to the
integrity of the jury system.
V. Conclusion
In sum, we conclude Kamath has not shown error in the trial
court’s finding that the nurse juror committed misconduct. Nor has he
shown that the court abused its discretion in ordering a new trial based
on that misconduct. We therefore affirm the order granting a new
trial.6
DISPOSITION
The order, filed November 14, 2019, is affirmed. Plaintiffs and
respondents Richard Wibbeler and Kathy Wibbeler are awarded costs
on this appeal.

6 In light of our determination, we do not address Kamath’s other
arguments.

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 _________________________
Petrou, J.

WE CONCUR:

_________________________
Fujisaki, Acting P.J.

_________________________
Chou, J.*

A159347/Wibbeler et al., v. Kamath et al.

*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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