Gray v. Reeves

• Decision Date: 13 December 1977
• Citation: 76 Cal.App.3d 567,142 Cal.Rptr. 716
• Court: California Court of Appeals Court of Appeals
• Parties: Stephen GRAY, Plaintiff and Appellant, v. James REEVES, M.D., et al., Defendants and Respondents. Civ. 14783.

Page 716

142 Cal.Rptr. 716

76 Cal.App.3d 567

Stephen GRAY, Plaintiff and Appellant, v. James REEVES, M.D., et al., Defendants and Respondents.

Civ. 14783.

Court of Appeal, Fourth District, Division 1, California.

Dec. 13, 1977.

As Modified Jan. 6, 1978.

Harney & Moore, and Robert D. Walker, Los Angeles, for plaintiff and appellant.

McInnis, Fitzgerald, Rees & Sharkey, and Peter L. Dean, Holt, Rhoades & Hollywood, and Dan H. Deuprey, San Diego, for defendants and respondents.

COLOGNE, Associate Justice.

Stephen Gray filed a complaint against James Reeves, M.D., and McKesson Laboratories alleging negligence occasioned by his use of a drug called prednisone. After Gray's depositions were taken, Reeves and McKesson moved for summary judgment on the grounds the complaint was barred by the statute of limitations. The motion was denied but was renewed six months later. This second motion was granted and judgment entered in favor of Reeves and McKesson. Gray appeals.

In 1968 Gray began treatment with Reeves who prescribed prednisone to help Gray gain weight and improve his anemic condition. Gray was suffering from infectious hepatitis. Gray took the drug over an extended period of time renewing his prescription from time-to-time. No one but Reeves prescribed the drug.

By May 1970 Gray was having problems with his legs and was on crutches. On January 29, 1971, after Gray had been on crutches for about six months, he went to Reeves for the last time. At that time, Reeves advised Gray that he had aseptic necrosis, a condition of degeneration of the hip socket, and it was probably caused by the drug prednisone. According to Gray's testimony at a deposition Reeves said:

" . . . 'Steve, you have aseptic necrosis, and it is probably caused from the prednisone, and they can treat you,' or 'You need an orthopedic specialist,' or words to that effect, and that I could get treatment at University Hospital."

At that time Gray understood his hip condition was "probably caused" by the prednisone and he repeated it to his mother, Harriet B. Gray. On the day after his conversation with Reeves, he entered University Hospital and repeated Reeves' statements to several doctors. The hospital staff also explained the nature of aseptic necrosis at that time.

Corrective surgery was performed on Gray in May 1971.

In August 1973 Gray filed his complaint charging Reeves with negligence in the care and treatment of Gray by reason of his prescribing the drug, and negligence in Reeves' failure to fully inform Gray of the consequences and hazards involved with use of the drug; and against McKesson for failure to warn as to the consequences and hazards, breach of warranty as to the quality of the drug for the use intended and sale of a defective drug. Causes of action based on strict liability in tort and breach of warranty were dismissed along with the claim for punitive damages. The answers of Reeves and McKesson were filed denying any wrongdoing and raising the issue of the statute of limitations.

Gray's deposition was taken December 17, 1973. He filed answers to his written interrogatories on the following day. On November 4, 1974, about one year later, Reeves filed a motion for summary judgment based on the answers to interrogatories and the deposition of Gray. Since the deposition had not yet been signed by Gray, Reeves' attorney attempted to put Gray's answers taken from the unsigned deposition into his own affidavit.

On January 15, 1975 Gray filed a declaration stating while Reeves had told him in January 1971 the cause of his aseptic necrosis might have been the prednisone, he did not know the "negligent" cause or that it was a result of Reeves' acts or omissions. The declaration states Reeves told Gray his hepatitis was life threatening and he had to take the drug to stay alive. In February 1971, according to the declaration, Reeves again told him that without the prednisone he would not have survived the attacks and that preservation of his life was more important than the injury to the hips. In the deposition Gray stated by May 1971 he knew Reeves had done something wrong in prescribing the drug but by this January 15, 1975 declaration Gray said that response in the deposition was in error and he would correct the deposition before signing it. It is his present position he knew the cause of his problem at that time but did not know the "negligent cause." He asserts that until he saw his lawyer, no one ever told him Reeves was negligent in prescribing the drug.

At the hearing in January 1975 the trial court refused to receive the deposition into evidence since it had not been signed and denied the motion for summary judgment.

Attorneys for Reeves then made repeated efforts to get Gray to sign the deposition, but he did not do so. Five months after the denial of the first motion and one year and seven months after the taking of the deposition Reeves and McKesson moved for leave to file plaintiff's deposition over the signature of the court reporter pursuant to Code of Civil Procedure section 2019(e) ¹ and for summary judgment, again on the grounds the statute of limitations barred recovery.

Gray filed a counter-declaration incorporating his earlier declaration. On the day of the hearing on this motion he signed the deposition making the following corrections:

" 'Q. When did you first feel that Dr. REEVES had done something wrong?

A. Well, I more or less felt all along that Dr. REEVES did something wrong.' Changed to: 'I don't know.'

" 'Q. And it would be sometime then, between February of 1971 and May of 1971 that you felt that Dr REEVES had done something wrong?

A. Yes.' Changed to: 'No, that is when I learned what aseptic necrosis was.'

" 'Q. And when you felt that he had done something wrong, did you feel that he was wrong in connection with giving you prednisone?

A. Yes.' Changed to: 'That is what I was eventually told by my counsel in 1973.' "

In considering a motion for summary judgment we are governed by well-settled principles of law tersely stated in R. D. Reeder Lathing Co. v. Allen, 66 Cal.2d 373, 376, 57 Cal.Rptr. 841, 425 P.2d 785. The trial court must determine whether the opponent has by affidavit or declaration presented any facts that give rise to a triable issue. The court does not resolve conflicting factual allegations, for the purpose of the procedure is to discover whether the parties have evidence requiring assessment at trial. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for trial. Accordingly, the affidavits and declarations of the moving party are strictly construed and those of his opponent, even if in conclusionary terms, are liberally construed (see also Howe v. Pioneer Mfg. Co., 262 Cal.App.2d 330, 336-337, 68 Cal.Rptr. 617).

We are also mindful of the rule expressed in Leasman v. Beech Aircraft Corp., 48 Cal.App.3d 376, 382, 121 Cal.Rptr. 768, that when a defendant can establish his defense with the plaintiff's admission sufficient to pass the strict construction test imposed on the moving party, the credibility of the admissions are valued so highly that the contradicting affidavits may be disregarded as irrelevant, inadmissible or evasive (see also D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 21-22, 112 Cal.Rptr. 786, 520 P.2d 10; King v. Andersen, 242 Cal.App.2d 606, 610, 51 Cal.Rptr. 561). The reason for this rule was spelled out in D'Amico, supra, which 11 Cal.3d at page 22, 112 Cal.Rptr. at page 801, 520 P.2d at page 25 states, " . . . admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts." (See Bauman: California Summary Judgment, A Search For a Standard, 10 U.C.L.A.L.Rev. 347.)

There is no reason to draw a distinction between an attempt to counter an admission by affidavit and an attempt to counter an admission by changing the content of an answer given by a party directly in the deposition, especially where there is no assertion the original answer was incorrectly transcribed or the question was misleading or ambiguous. In both the changed affidavit and changed deposition cases the credibility of the parties is held up for examination by the contradicting statements, the first of which constitutes a reliable admission against interest. The trial court may accept the first and reject the later of these contrary positions. This choice is particularly called for where, as here, the deponent waits 19 months to make the changes and is then inspired to make the changes by pressures attending an apparently grantable motion for summary judgment.

In the case before us Gray testified under oath Reeves had prescribed prednisone for his infectious hepatitis and that on January 29, 1971 he was told by Reeves his hip problems were probably caused by the drug. There is no dispute in these facts. Gray's testimony, however, went further saying that between February 1971 and May 1971 he felt Reeves had done something wrong. (See Sanchez v. South Hoover Hospital, 18 Cal.3d 93, 102, 132 Cal.Rptr. 657, 553 P.2d 1129.) It is this testimony he wants to correct. In his affidavit he says, "[t]he testimony there set forth (that Reeves had done something wrong) is erroneous. I must have been confused by the other references to the time period of February to May, 1971." With only these brief words of explanation, he then attempts to suggest a position diametrically opposed to his testimony. His credibility on the point of knowledge of Reeves' error was subject to scrutiny and the court was acting properly in accepting the testimony of the deposition first given admitting certain facts which bear on the issue of the statute of limitations and rejecting the declaration which attempted to put back into ...