Bowen v. Ryan

• Decision Date: 05 June 2008
• Docket Number: No. C051930.,C051930.
• Citation: 78 Cal. Rptr. 3d 128,163 Cal.App.4th 916
• Parties: D'MICHAEL BOWEN, a Minor, etc., et al., Plaintiffs and Respondents, v. DONALD RYAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

163 Cal.App.4th 916

78 Cal. Rptr. 3d 128

D'MICHAEL BOWEN, a Minor, etc., et al., Plaintiffs and Respondents, v. DONALD RYAN, Defendant and Appellant.

No. C051930.

Court of Appeals of California, Third District.

June 5, 2008.

CERTIFIED FOR PARTIAL PUBLICATION^*

Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, C. Athena Roussos; Law Offices of Robert B. Zaro, Robert Zaro and Stephen L. Ramazzini for Defendant and Appellant.

Law Office of Johnson & Johnson, Peter Johnson and Kelly Jenkins for Plaintiffs and Respondents.

OPINION

HULL, J.

Defendant Donald Ryan is a dentist whose patients include difficult-to-treat children with behavior problems. This case began with a claim by plaintiff D'Michael Bowen that defendant choked him and shoved him against a wall during a dental appointment. It continued with a trial that included 13 witnesses testifying about nine different unrelated incidents in which defendant allegedly hit, restrained, or otherwise mistreated child patients. The trial ended with a nine-to-three special verdict awarding plaintiff $90,000 in damages. No punitive damages were awarded because the jury found no malice.

On appeal, defendant contends that the court erred in admitting the evidence of unrelated incidents. We agree, and reverse the judgment. For the guidance of the court in the event of retrial, we briefly address defendant's remaining claims concerning the proper scope of an expert witness's testimony.

FACTS AND PROCEEDINGS

Defendant had been in practice for approximately 28 years and estimated he had seen 35,000 to 45,000 patients during that time, including 8,000 to 10,000 patients in the preceding five years. The vast majority of his patients were children, some of whom had been referred by other dentists because they were difficult to treat.

Plaintiff's complaint alleged causes of action against defendant for assault, battery, and professional negligence. These claims were based on events that occurred when plaintiff went to defendant's office for dental treatment. Plaintiff alleged that defendant choked him, restrained him, slammed him against a wall, and threatened him with harm. This incident occurred in 2002, and trial took place in 2005. The evidence at trial was as follows:

In the summer of 2002, when plaintiff was eight years old, plaintiff developed an infected tooth. His mother took him to a dentist, but plaintiff refused to cooperate and would not open his mouth. The dentist prescribed antibiotics and suggested that plaintiff see another dentist.

Plaintiff took the antibiotics and his condition temporarily improved. When the pain returned and plaintiff's face became swollen plaintiff's mother called defendant's office and asked if they could see plaintiff that day. The office made an immediate appointment.

After completing some paperwork, plaintiff's mother accompanied plaintiff into the operatory but she was soon asked to wait in the reception area. She complied, leaving defendant, his assistant, and plaintiff in the operatory.

Defendant planned to do a pulpectomy (a procedure similar to a root canal) and he applied a topical anesthetic preparatory to giving plaintiff an injection to numb the area around the problem tooth. It is at this point that plaintiff's version of events and defendant's diverge.

According to plaintiff, he began to cry when he saw defendant take a syringe from the counter. Plaintiff said that he did not want a shot, and cried "no, no, no" over and over. When the needle was about 12 inches from his face, he began kicking his feet and he put his arms above his stomach. Defendant then placed his arm on the right side of defendant's neck and pushed hard, making it impossible for plaintiff to breathe. At trial, plaintiff said defendant held his arm against plaintiff's neck for 60 seconds; in his deposition, plaintiff had estimated that this lasted three to four seconds. Plaintiff testified that defendant let go when his assistant told him to stop.

Upon being released from this hold, plaintiff said he had to use the bathroom. Plaintiff went down the hall by himself to the bathroom and returned. When he came back into the operatory, defendant slammed him against a wall and held him there, angrily asking if there was going to be a problem and if plaintiff would let defendant work on his teeth. Plaintiff was scared, but said he would cooperate. Plaintiff climbed back onto the dental chair, and defendant completed the planned treatment.

Defendant offered a very different version of events. He said that as he approached the injection site with the unsheathed syringe, plaintiff turned his head and saw the shot. The needle was about four inches from plaintiff's face. Plaintiff began kicking and grabbed defendant's wrist with both of his hands. Defendant was concerned that the needle would hurt plaintiff, the dental assistant or himself, and he put his forearm on defendant's chest in order to stabilize the syringe. Defendant repeatedly told plaintiff to let go of his arm.

Plaintiff asked to go to the bathroom, and the dental assistant told defendant to let him go. Defendant replied that he would let him go as soon as plaintiff released his arm. Plaintiff did so, and got out of the chair.

Defendant motioned plaintiff over and stopped him by the entryway by putting his hand on plaintiff's chest. He did not push him, but instead spoke to him firmly, explaining that his job was to fix plaintiff's teeth, and that they could either be fixed here or at the hospital. He told plaintiff that there could be no kicking or grabbing, and plaintiff said that he understood. Plaintiff went to the bathroom, returned to the operatory, and apologized to defendant. Plaintiff climbed back into the dental chair and defendant continued the procedure without further incident.

Defendant denied ever putting his arm against, or touching, plaintiff's neck, and he denied shoving plaintiff into the wall.

Defendant's dental assistant corroborated defendant's testimony. She testified that when the syringe was three to four inches from plaintiff's mouth, plaintiff screamed and began to kick hard. Plaintiff grabbed defendant's arm and defendant put his own arm on plaintiff's midsternum to stabilize his hand. She never saw defendant's arm on plaintiff's throat, and plaintiff never said that he could not breathe. She estimated the entire episode lasted four to five seconds. She did not see or hear defendant push or shove plaintiff. She said plaintiff was calm when he returned from the bathroom, apologized to defendant, and was cooperative through the remainder of the procedure.

The dental receptionist heard plaintiff crying in the bathroom, but did not hear plaintiff say anything in the operatory. She did not hear him say anything to his mother after the appointment about being choked.

Another office worker testified on behalf of plaintiff. She said that while she was working in the office lab, she heard defendant's voice sounding very loud. She also heard plaintiff say "no, no, no." She heard plaintiff ask to use the bathroom, and after a few minutes, saw defendant push his chair back, throw his arms up and say, "Fine. Go." She said that she saw defendant grab plaintiff near the collarbone and neck and physically shove him against the doorframe. Plaintiff told him in a very loud voice that this behavior would not be tolerated in his office. Plaintiff had a shocked look on his face, but proceeded to the bathroom.

The employee was very upset by what she had witnessed, and later called plaintiff's mother, ostensibly to see how plaintiff was doing after his dental procedure. When plaintiff's mother said that plaintiff had told her that he had been choked, the employee told her what she had witnessed.

Much of the testimony at trial related to appropriate and inappropriate behavior modification techniques used by pediatric dentists. These included descriptions of restraints such as a papoose board, in which a child is put on a rigid board with hands tied down, and a hand-over-mouth-technique used to quiet children. None of these techniques were alleged to have been used on plaintiff. Testimony also described voice modulation techniques and the use of volume and tone to communicate with children. Plaintiff offered an expert witness to explain proper behavior modification techniques, and argued that defendant did not use these methods appropriately.

Before trial began, plaintiff disclosed that he intended to call numerous witnesses to describe plaintiff's treatment of other children. Defendant sought to exclude this evidence as improper character evidence under Evidence Code section 1101 (unspecified section references that follow are to the Evidence Code), but the trial court denied the motion, finding that the evidence was relevant to demonstrating a common plan or design.

At trial, 13 witnesses described nine different incidents, as follows:

Incident 1: A.G. and his mother testified that defendant treated A.G. in 2000, when A.G. was four and one-half years old. A.G. said that he was standing on the chair and crying when defendant ordered him to sit down and be quiet. When he did not comply, defendant slapped him on both sides of his face, causing him to bleed under his nose. A.G.'s mother said she heard defendant yelling at her son. When she went into the operatory to see what was happening, she saw two assistants holding her son's legs, and defendant holding him down by the shoulder.

Incident 2: G.V. testified that defendant treated her in 2000, when she was nine years old. She thought she had been tied down for her treatment. At some point, her gum was cut and she asked to rinse out her mouth. Defendant told her she could not. As G.V. cried, defendant told her to shut up, and put his hand over her mouth so that she could not breathe.

Incident 3: M.O. and her mother testified about treatment she received in 1993, when M.O. was four years old. M.O. remembered that she had...