I, JOHN P. BLUMBERG, declare as follows.
1. I am an attorney licensed to practice law in California since 1976. I am also admitted to practice and have appeared before federal courts, including the Federal District Court for the Central District of California, and the Ninth Circuit Court of Appeals. I have been a practicing civil trial attorney since 1976 and am board certified in specialties recognized by the State Bar of California, Board of Legal Specialization: As a civil trial lawyer by the National Board of Trial Advocacy; as a medical malpractice specialist by the American Board of Professional Liability Attorneys; and as a legal malpractice specialist by the State Bar of California, Board of Legal Specialization. I have achieved the rank of Advocate in the American Board of Trial Advocates (ABOTA), having tried over 50 civil cases to jury verdict. I have been on the faculty of the ABOTA trial school for over 15 years. I have represented personal injury plaintiffs in hundreds of lawsuits and claims and I am familiar with the standard of care of attorneys practicing personal injury law in California. A copy of my resume is attached hereto.
2. I was requested to evaluate the conduct by attorneys of the [law firm] in connection with trial of the case of [Lourdes S] vs. United States of America, case number [XXX]. In that case, the written Order and Judgment of the trial judge indicated that, but for the failure of the plaintiff’s trial attorney to properly authenticate medical bills at the trial, he would have awarded a significantly greater sum as damages for past medical bills. In order for me to evaluate whether the trial judge was correct in his criticism, I reviewed the entire trial transcript as well as numerous documents filed by the attorneys for plaintiffs and defendant that had been obtained from the federal court’s PACER system. As discussed below, it is my opinion that the [law firm] attorneys fell below the standard of care in certain aspects of the trial of the lawsuit, specifically, not introducing medical bills into evidence, resulting in the absence of evidence that would have allowed the trial judge to have awarded a greater sum to plaintiff for her past medical bills. All documents to which I refer in this declaration are attached hereto as an Appendix. Exhibit “1” thereof is the “Order and Judgment” - PACER doc 54.
3. On April 5, 2010, the court filed its Order for Jury Trial [Exhibit “2” -PACER doc 17] in which it ordered that the witness list and exhibit list would be due 21 days before the final pre-trial conference.
4. On December 3, 2010, defendant filed a memorandum of contentions of fact and law. [Exhibit “3” - PACER doc 23.] At page 6 thereof, defendant wrote that “plaintiffs must introduce at trial evidence which establishes the amounts paid for the medical care they have received. There [sic] mere proffer of medical bills is insufficient. In the event there are medical bills which remain unpaid, then plaintiffs must introduce evidence which demonstrates that those payments are outstanding.” At page 10, defendant argued that “plaintiffs have failed to produce any documentation that substantiates the past medical expenses amount they are claiming.” Defendant wrote that the failure of plaintiffs to comply with Federal and local rules justifies a motion to exclude such evidence. However, I saw no evidence that such a motion was brought. Nevertheless, this document indicates that [law firm] was on notice and aware that defendant would require authentication of all proferred evidence of past medical bills.
5. On December 10, 2010, [law firm] filed its joint witness list. No custodians of records were listed. The same day, [law firm] filed its exhibit list (Exhibit “4” - PACER doc 25), identifying exhibits 31-92, i.e., 61 medical providers' bills.
6. On February 16, 2011, [law firm] filed an ex parte application seeking relief from individually authenticating medical (or Medi-Cal) records and bills by 57 custodians of record. [Exhibit “5” - PACER doc 42.] Defendant opposed the motion, challenging, among other things, the authentication of the records and bills. [Exhibit “6” - PACER doc 43.] The motion was denied. In my opinion, the motion was properly denied because some form of authentication is required for medical records and bills to be admissible in evidence. The denial of the motion put [law firm] on notice that it would be required to authenticate the evidence of past medical bills.
7. On February 17, 2011, the defense filed its objections to all of plaintiff's medical bills based on lack of foundation. [Exhibit “7” - PACER doc 44.]
8. Trial commenced on February 22, 2011. The Day 1 Reporter’s Transcript is Exhibit “8” - PACER doc 55. On pages 62-63 of the transcript, [law firm] [attorney KA] informed the court that he had numerous custodians of records "regarding medical records in their possession, and they have signed affidavits that these are the records. I would like to lodge them at this time." The defense objected and before defense counsel stated the basis of the objection, the court said "Sustained. Unless the foundation is laid, sustained. They may have to testify. . . . You are going to have to lay the foundation before they can come in." Even though there were custodians of records waiting in the hallway (pages 3-4) [law firm] did not call any of the custodians at that time, nor were any of the affidavits identified for the record or moved into evidence.
9. Dr. Ian Ross testified (at page 124) that he didn't understand the bill generated by his office regarding plaintiff but (at page 152) he testified that the total charges for his professional services were $44,658 and were reasonable. The bill was not allowed into evidence but his testimony about it was allowed.
10. Dr. David Ramin testified (at page 174) that his bill for treatment provided to plaintiff was $12,001 and was reasonable.
11. Day 2 of the trial commenced on February 23, 2011. The Day 2 Reporter’s Transcript (morning session) is Exhibit “9” - PACER doc 56. At page 3, [attorney KA] asked to call Nancy Barnett, the custodian of records for Rancho Los Amigos. Defendant objected because none of the custodians of records were listed on the witness list. The objection was sustained. Assuming that there was an affidavit of the custodian of records attesting to the bill for medical care provided to plaintiff, it was not offered in evidence. [Attorney KA] made no offer of proof of what Ms. Barnett would testify to. Additionally, [law firm] did not attempt to persuade the court to change its ruling.
12. Plaintiff’s brother, Jose [S], was called as a witness and testified (at p. 12-13) that he received bills from medical providers for his sister's care and that the list of bills and providers (exhibit 93) reflected that. He testified, "I can't explain what each one is for..." He was not asked if the bills had been paid.
13. Dr. Marcel Ponton (Ph.D.), a psychologist who examined plaintiff, was asked (at p. 40) if the medical bills he reviewed regarding plaintiff's care were reasonable. Defendant’s objection that he was not qualified to render that opinion was sustained. In my opinion, the objection was properly sustained because there was no foundation that he was competent to render an opinion regarding reasonableness of medical bills.
14. Maria Rocio Salazar testified (at p. 85) that her billing showed that she had been paid $257,456 for custodial and personal care she had provided to plaintiff. Her bill (exhibit 95) was received in evidence. In the afternoon of Day 2, Ms. Salazar was cross examined and, answering a question about whether she had been paid "over $250,000," she said, “yes.” The Day 2 Reporter’s Transcript (afternoon session) is Exhibit “9” - PACER doc 59.
15. [Attorney KA] sought (at p. 36) to submit the deposition transcript of Dr. Miller, an expert medical witness, who was under subpoena but had gone to Australia. The defense objected. The court disallowed the deposition, saying "First of all, timing is not appropriate. Second of all, there is no excuse for his not being here. He's under subpoena, he should have been here. So the deposition testimony cannot come in."
The “timing” reference may be to Local Rule L.R. 32-1 which requires that depositions to be used at trial must be lodged no later than the day of trial. [Attorney KA] informed the court that he had learned Dr. Miller was in Australia the previous Friday, and he had not lodged the deposition transcript with the clerk by the following Tuesday, the first day of trial. Rule 32 of the Federal Rules of Evidence (Using Depositions in Court Proceedings) provides at (a)(4)(B) regarding an unavailable witness, that: “A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: . . . that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition.” However, after the court disallowed the submission of the deposition transcript, there was no offer of proof regarding what the substance of the excluded testimony was. The transcript was, however, lodged, thus preserving appellate review. The description of Dr. Miller’s testimony in the pre-trial filings indicated that he would testify regarding plaintiff’s need for future care; there was no mention of testimony regarding past medical bills.
16. The defense called Dr. Arthur Kowell, a neurologist, who testified on cross examination (at p. 58) that all past medical services rendered to plaintiff were necessary. Dr. Thomas Hedge, a rehabilitation physician, similarly testified on cross examination (at p. 95) that the past treatment provided plaintiff was reasonable.
17. Day 3 of the trial commenced on February 24, 2011. The Day 2 Reporter’s Transcript is Exhibit “11” - PACER doc 58. The defense re-called Jose [S] who was cross-examined (at p. 31-32) regarding the exhibit containing the list of medical bills. He testified that he did not know whether the figures were accurate and did not know if the bills had been paid or whether they were owed. On re-direct (at p. 33) [Attorney KA] attempted to rehabilitate Mr. [S] as follows: "Q. Wasn't it true that we went over the medical section with you?" "A. Yes". “Q. So you saw this document before and you understood it, correct? With our assistance?" "A. Yes." “Q. It's your understanding that these are the medical bills that you received at your home from these health providers, correct?" "A. Yes."
18. After both sides rested, [Mr. ___], a [law firm] attorney, argued in closing (at p. 104) about the amount of the bills, including the Medi-Cal lien of $258,333. The defense argued (at p. 117) that no medical bill had been offered in evidence.
19. In the judge's decision (Exhibit “1” - PACER doc 54), he was highly critical of plaintiff's attorney in failing to properly authenticate the medical bills. He addressed the list (exhibit 95) and said that Jose [S] had been unable to verify whether the bills were paid and ruled that it was not admissible evidence of the bills. In my opinion, this was a correct ruling. If the medical bills were “voluminous writings” which could not be conveniently examined in court, then, under Fed.R.Evid. 1006, a proper foundation for such a summary must, nevertheless be laid through the testimony of the witness who supervised preparation of the exhibit. (See United States v. Scales, 594 F.2d 558, 563 (6th Cir.), cert. denied, 441 U.S. 946 (1979); U.S. v. Behrens (10th Cir. 1982) 689 F.2d 154, 161. "The materials or documents on which a Rule 1006 exhibit is based must be made available for examination or copying by other parties at [a] reasonable time and place, but need not be admitted into evidence. If they are not introduced, however, those materials or documents must be admissible under the Federal Rules of Evidence. In other words, Rule 1006 is not a back-door vehicle for the introduction of evidence which is otherwise inadmissible." (Peat, Inc. v. Vanguard Research, Inc. (11th Cir. 2004) 378 F.3d 1154, 1160.)
20. The court allowed, albeit grudgingly ("reliance on these testimonies is barely sufficient grounds"), the testimony of Drs. Ross and Ramin as proof of past medical bills, and allowed the bill of Maria [S], although he incorrectly awarded only $250,000 (instead of $257,456) citing her testimony that she was paid "over $250,000." The court wrote that "Had [S] Counsel properly introduced a complete listing of [S]'s past expenses, the Court would have awarded them accordingly." In my opinion, the doctors’ testimony was fully sufficient, not “barely sufficient.”
Analysis
21. An attorney is obligated to be familiar with the rules governing admissibility of documentary evidence, and specifically medical bills. There must be evidence that the treatment was reasonable and necessary, the amount of the bills, the amount paid and the amount the plaintiff is still obligated to pay. The pertinent rules are as follows:
Fed. R. of Evid. 803(6):
A memorandum, report, record .... in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the [record] as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11).
Rule 902(11):
The original or a duplicate of a domestic record or regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person ..., certifying that the record (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice.
Fed. Rules Evid., rule 901:
Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only--not a complete list--of evidence that satisfies the requirement: . . .
(7) Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept.
The Advisory Committee Notes to the 1972 proposed rules of evidence:
Example (7). Public records are regularly authenticated by proof of custody, without more. McCormick § 191; 7 Wigmore §§ 2158, 2159. The example extends the principle to include data stored in computers and similar methods, of which increasing use in the public records area may be expected. See California Evidence Code §§ 1532, 1600.
22. With the exception of the testimony of Drs. Ross and Ramin, and Ms. [S], there was no evidence offered by [law firm] attorneys that the treatment received by plaintiff was reasonable and necessary or that the charges were reasonable. Assuming that Dr. Miller's deposition testimony covered that point, I would not fault [law firm] for not establishing those elements because the court incorrectly excluded his deposition testimony. However, I do criticize the failure of the [law firm] attorneys to have made an offer of proof of that fact. The point, however, is moot because defense witnesses Drs. Kowell and Hedge testified on cross examination that the treatment was necessary and reasonable.
23. The court wrote that it would have awarded the past medical expenses if "a complete listing" had been introduced. Exhibit 95 was offered as a complete listing, but it was not properly authenticated. Defense counsel is not required to stipulate to the authenticity of medical records (although under the Federal rules, a party can be sanctioned for unreasonably refusing to do so.) Accordingly, the standard of care required that plaintiff's counsel be prepared to offer admissible evidence. This could have been accomplished by offering custodian of records affidavits that complied with Fed. Rules of Evidence 803(6) for the medical bills and 903(11) for the Medi-Cal lien.
24. I have considered the question of whether the court incorrectly refused to permit the affidavits to be "lodged." [law firm]'s exhibit list included reference to "Medical Records and Bills." Assuming that all of these bills were accompanied by admissible affidavits of custodians of records, and showed the amounts billed, paid and/or owing, they should have been admissible. However, the record discloses that they were never offered in evidence for the court's consideration. Inexplicably, [Attorney KA] asked only that the affidavits be "lodged" rather than offering the medical records and affidavits into evidence, and when the court told him that there needed to be proper authentication, he never made any attempt to do so. Under Rule 803(6), the affidavit is the authenticating vehicle to lay foundation. The standard of care required [law firm] to have offered the medical bill exhibits with the affidavits, and if the court ruled they were not in the correct form for authentication, the [law firm] attorneys could have called the custodians of records as witnesses. The problem, of course, is that the custodians of records were not identified on the witness list. Later, when the court refused to allow the Rancho Los Amigos custodian of records to testify on that basis, it appears that the court was putting form ahead of substance. (I will address this point in paragraph 25, below.) Nevertheless, with regard to the Rancho Los Amigos bill, [law firm] never offered it in evidence. Similarly, the Medi-Cal lien was never offered into evidence, both of which could have been authenticated with qualifying affidavits.
25. When [Attorney KA] informed the court on Day 2 (Exhibit “9” - PACER doc 56, at page 3) that his next witness was Nancy Barnett, the custodian of records for Rancho Los Amigos, the court sustained the defense objection that she had not been listed as a witness. Faced with the sustained objection, the standard of care required that the [law firm] attorneys to do two things: (1) make an offer of proof of what the testimony of the witness would have been, and (2) attempt to persuade the court to change its ruling in the interests of justice, citing to the ex parte motion it had made before trial in which they generally identified 57 custodians of medical records who would have to testify. (Exhibit “5” - PACER doc 42), and also citing the court’s previous statement (in sustaining the objection to the affidavits) that “They [the custodians of records] may have to testify.”
26. Based on my education, training and experience, and after reviewing pertinent PACER documents relating to the trial, and the trial transcript, my opinions are as follows:
(a) Assuming that the [law firm] attorneys had obtained affidavits from the custodians of records for all of the medical providers authenticating the medical records and bills, they were negligent in their failure to have offered the medical bills accompanied by the affidavits into evidence. Even if the court had incorrectly ruled that the foundation was not sufficient, the excluded evidence would have provided a basis for appeal.
(b) If the [law firm] attorneys were contemplating the need to call custodians of records as witnesses, they were negligent in their failure to have listed them on their pre-trial witness list. If the [law firm] attorneys had previously reasonably believed that the affidavits of the custodians of records would be sufficient authentication of the medical bills, they were negligent in their failure to have moved the court to amend the witness list after the court denied their ex parte motion in which they argued that they would be required to call 57 custodian of records as witnesses.
(c) The [law firm] attorneys were negligent in their failure to have timely lodged the deposition transcript of Dr. Miller, although it is unclear whether this was the reason why it was excluded.
(d) The [law firm] attorneys were negligent in their failure to have attempted to persuade the judge to change his rulings excluding evidence and witnesses and the deposition testimony of Dr. Miller.
(e) The [law firm] attorneys were negligent in their failure to introduce the Medi-Cal lien into evidence, with an affidavit providing adequate authentication.
(f) The [law firm] attorneys were negligent in failing to make offer of proof after witnesses and evidence was excluded.
27. It is my opinion that the above-stated failures to comply with the standard of care resulted in the absence of admissible evidence of past medical bills that, according to the court's Order and Judgment, would have resulted in an award of all such past medical bills. The amount of past medical bills not awarded, therefore, is damage proximately caused by the negligence of the [law firm] attorneys, with the exception of the $7,456 of [Maria S]'s bill incorrectly not awarded (see ¶20, infra.) To arrive at the net loss to plaintiff, the gross amount of medical bills and Medi-Cal lien not proven at trial would have subtracted from it the amount of attorney fees that would have been charged thereon and any discount or compromise that Medi-Cal or the medical providers have or will apply.
I declare under penalty of perjury that the foregoing is true and correct. Signed on August 30, 2012, at Long Beach, California.