University of Vermont AAHS

Pitnick v. Kuhlmann

California Court of Appeals
2004 WL 2569398
November 10, 2004

Summary of Opinion

Plaintiff Pitnick, a race horse owner, employed defendant Kuhlmann, a veterinarian, to make a prepurchase examination of a horse.  Based on part on the examination and report, Pitnick purchased the horse and later discovered the horse to be lame and not suitable for racing.  He contended in his lawsuit that the veterinarian was negligent in failing to discover the physical condition that made the horse lame.  The trial court awarded plaintiff damages and in this opinion the Court of Appeals agrees with that decision.  There was evidence from two veterinarians about the standard of care in this context and that the defendant’s conduct did not rise to that standard.

Text of Opinion

 In this veterinary malpractice case, defendants Kim L. Kuhlmann, D.V.M., and San Francisco Equine, Inc., appeal from a judgment in favor of plaintiffs Brian Pitnick and Don Camiccia on their claim alleging failure to disclose a latent defect during the prepurchase examination of a thoroughbred racehorse. They contend that the trial court erred in denying their motion for nonsuit because there was insufficient evidence to establish the existence of a professional standard of care. They also argue that plaintiffs failed to show causation between the horse's injury and the alleged breach of the standard of care. Finally, they assert that the trial court erred in considering evidence contained on Kuhlmann's notice of claim to his insurance company. We affirm.

I. FACTUAL BACKGROUND

 Pitnick is a licensed thoroughbred trainer at Bay Meadows Race Track. He began buying thoroughbred racehorses in 1988. In 2001, he became interested in purchasing a horse known as Seductive Cat. Prior to purchasing the horse, he decided to have Kuhlmann, one of the veterinarians he regularly used, conduct a prepurchase examination to determine whether the horse had any latent defects. Tony Diaz, Pitnick's horse trainer, arranged for the examination. According to Diaz, Kuhlmann said that the horse's knees were open, but it "wasn't anything serious."  [FN1] Diaz and Kuhlmann also discussed the x-rays Kuhlmann had taken, but Kuhlmann did not mention anything about any problems with the right front ankle, fetlock, or sesamoid. [FN2] Based on Kuhlmann's representations, Pitnick, Diaz, and Don Camiccia purchased the horse for $15,000 on May 1, 2001. Thereafter, they sent the horse to a lay-up facility for conditioning. Understanding that the horse's knees were not completely closed, they did not want to push him too early. Two months later, the horse began formal training.

FN1. An "open" knee refers to a knee in which the joint capsules are not yet closed. The knees close as the horse matures. (In this case, when the horse's knees were x-rayed two months later it was found they had closed.)

FN2. The sesamoid helps suspend the leg from the knee down. The suspensory ligament attaches on the two sesamoids at the ankle.

During the initial training period, Pitnick noticed that the horse would gallop well; but following the exercise, it would take a few awkward steps before returning to the barn. [FN3] Dr. William Grantham, the horse's veterinarian, recommended that they push the horse a little harder in training to determine whether a problem could be pinpointed. On November 3, Dr. Grantham noticed some swelling around the horse's right sesamoid. Grantham x-rayed the horse's right ankle. Based on the x-rays, Grantham determined that the horse had sesamoiditis, a hole, fracture, or demineralized area in the sesamoid of the front ankle or fetlock, and that it was unlikely that it would make a viable racehorse. He opined that the sesamoiditis was the cause of the horse's lameness. He subsequently asked to review Kuhlmann's x-rays to see if the sesamoiditis had existed during the prepurchase examination. Grantham noticed that the same condition was present in the earlier x-rays. He testified that it would be below the standard of care to describe the horse's condition as minor. He further testified that it would be below the standard of care not to disclose this finding to a purchaser of the horse. He described the hole in the sesamoid as an abnormal finding which would render a horse not race worthy. Finally, Grantham testified that it was the custom and practice in the racetrack community to record the findings of the x-rays of the horse and clinical examination. Based on Grantham's advice, Pitnick determined that the horse would not be able to race. Pitnick testified that had he known about the abnormal findings on the x-ray, he would not have purchased the horse.

FN3. Diaz was initially the trainer. He, however, suffered a stroke in September 2001. Pitnick subsequently purchased Diaz's third of the horse.

 Dr. John Wheat, a veterinarian, also testified regarding the standard of care for performing prepurchase examinations. He testified that it was the custom and practice to record the findings made on prepurchase examinations. He further testified that he reviewed the horse's prepurchase x-rays as well as those taken by Grantham. He opined that the horse had a "very definite lesion" in the sesamoid bone. He further opined that it would be below the standard of care not to disclose the lesion and not to record the abnormal finding. He also testified that the lesion raised the risk that the horse would not be a viable candidate for the racetrack and that failing to disclose that fact was below the standard of care.

 In defense, Kuhlmann testified that he performed a prepurchase examination on the horse and found the horse to be completely sound. He disagreed with Grantham's and Wheat's characterization of an abnormal finding in the sesamoid. He opined that the x-ray simply showed a demineralization or less dense bone in the sesamoid, which was not an abnormal finding in that the majority of horses have demineralization. He said that he told Diaz that there were some minor changes in the horse's ankles, hocks and tarsus and that its knees were still open but that these were not significant findings. He further opined that his prepurchase examination of the horse was consistent with the standard of care, and that results of such examinations are always communicated orally and written results are never provided. On cross-examination, he admitted that he told Diaz that the horse was race worthy and that he never mentioned the sesamoid.

 Dr. Norman Rantanen, a veterinary radiologist, testified that radiolucent areas in sesamoids are very common in horses from 10 months to two and a half years of age. He averred that Kuhlmann's description of the x-ray results as minor changes in various joints was accurate and that Kuhlmann's opinion was within the standard of care. On cross-examination, however, he acknowledged that the x-ray showed a bone defect that should have been disclosed during the prepurchase examination. He opined that while it was recommended that all abnormal findings in a prepurchase examination be disclosed, it was not below the standard of care not to do so because race trainers and veterinarians simply want an okay on the horse and to know whether anything significant was found during the examination. He admitted that he would have disclosed the sesamoiditis but that it would not necessarily be below the standard of care for a racetrack practitioner not to disclose it.

 The court awarded damages in the amount of $45,962.50 to plaintiffs, finding that defendants' failure to disclose significant findings made during the prepurchase examination of the horse fell below the standard of care applicable to veterinarians engaged in racetrack practice and that had disclosure been made, plaintiffs would not have purchased the horse.

II. DISCUSSION

A. Standard of Care

 In Williamson v. Prida (1999) 75 Cal.App.4th 1417 (Williamson), the court explained the standard of proof required to establish veterinary malpractice. As in medical malpractice cases, the court held that a plaintiff alleging veterinary malpractice must present expert testimony establishing the appropriate standard of care in the relevant community and that the defendant's breach of this standard caused the animal's injury. (Id. at pp. 1424‑1425.) "Standard of care ' "is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman." [Citations.]' " (Id. at p. 1424.)

 Relying on Williamson, supra, 75 Cal.App.4th 1417, defendants contend that the trial court erred in denying their motion for nonsuit because there was no expert testimony presented establishing the existence of a standard of care and its breach. In Williamson, the plaintiffs sought to establish that the defendants' treatment of a racehorse was negligent because either they negligently administered Oxytetracycline injections to the horse causing thrombosis or the injections caused the condition. The Court of Appeal held that plaintiffs had not presented any evidence on the standard of care because their expert testimony simply showed that there was disagreement on the use of Oxytetracycline and there was insufficient evidence of negligent administration of the injections. " '[T]he fact that another physician or surgeon might have elected to treat the case differently or use methods other than those employed by [the] defendant does not of itself establish negligence. [Citation.]' (Lawless v. Calaway (1944) 24 Cal.2d 81, 87....)" (Id. at pp. 1425‑1426.)

 When a motion for nonsuit is denied and the case is tried on the merits, we will review the sufficiency of the evidence to support the verdict, not the sufficiency of the evidence at the time of the nonsuit motion. (Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 613.) Here, unlike Williamson, there was evidence of the standard of care exercised by other veterinarians in the racetrack community. Both Drs. Grantham and Wheat testified concerning the standard of care for performing prepurchase examinations. Both opined that the horse's x‑rays showed a hole or lesion in the sesamoid that adversely affected the horse's ability to race and that it would be below the standard of care not to disclose this finding to a potential purchaser. Even defendants' expert acknowledged that the x‑ray showed a bone defect that should have been disclosed during the prepurchase examination. While he testified that it was not below the standard of care not to disclose all abnormal findings in a prepurchase examination, he admitted that he would have disclosed the sesamoiditis. Given this record, there was substantial evidence to support the verdict; the trial court properly denied the motion for nonsuit. [FN4]

FN4. In their reply brief and at oral argument, defendants presented a slightly different argument—that the nonsuit should have been granted because plaintiffs' experts' opinions were bare conclusions, devoid of any "articulation of the factual analysis that led to [them]" (citing Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493). But this was not a proffered ground for the nonsuit motion. Accordingly, we need not address this issue here. In any event, the contention has no merit. Both experts provided factual bases for their opinions.

B. Causation

 Defendants also argue that the evidence failed to show causation—that but for Kuhlmann's negligence, there would have been a more favorable outcome. They rely on Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, a legal malpractice action, in which the court held that a client alleging malpractice in the performance of transactional work must prove causation under the "but for" test, meaning that the harm or loss would not have occurred without the malpractice. We need not decide whether this standard applies in a veterinary malpractice case because defendants failed to raise this issue below. It is well settled that a party may not raise a new theory of the case on appeal. " '[I]f the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at trial the opposing party should not be required to defend against it on appeal. [Citations.]' " (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879.)

 Nevertheless, the record contains evidence that the hole in the horse's sesamoid was the cause of its subsequent lameness. This evidence was sufficient to support the causation element of plaintiffs' claim. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117-1118 [plaintiff must show by expert testimony that defendant's negligence was a cause‑in‑fact of the claimed injury].)

C. Evidence of Notice of Claim

 In his redirect examination of Kuhlmann, defense counsel asked whether he had ever been sued over a prepurchase examination, apparently in an attempt to explain why Kuhlmann remembered the horse in this case so well but could not recall others. The trial court thereafter permitted plaintiffs' counsel to question Kuhlmann about how many malpractice suits and claims had been made against him, ruling that defendants had "opened the door" on the issue. Plaintiffs' counsel further questioned Kuhlmann if he had a right to consent or not to consent when a malpractice claim was made. Defense counsel objected to this question, arguing that it would disclose insurance information and was therefore inadmissible. The trial court permitted the questioning, again ruling that defendants had opened the door. When Kuhlmann responded that he would not consent to settle his case, plaintiffs were permitted to impeach him with his statement on a notice of claim to his insurance company that he would consent to payment. Ruling on defendants' objection that the evidence was inadmissible insurance information, the court stated, "I allowed the question regarding consent because I thought it might be leading to a number of prior malpractice claims. It has not led there. Insofar as introducing documents regarding insurance, you're correct. It is not admissible. However, a statement that this gentleman personally made on a document is a statement made on a document. It can be read into the record without my ever seeing the document."

 Defendants contend that the trial court erred in considering evidence that Kuhlmann submitted a notice to his insurance company authorizing payment on plaintiffs' claim. Citing Zarafonitis v. Yellow Cab Company (1932) 127 Cal.App. 607, plaintiffs argue that defendants invited the error by objecting and referencing insurance. In Zarafonitis, the court held that defense counsel's acknowledgment of the existence of insurance following the plaintiff's response that she was examined by a doctor for defendant's insurance company and defense counsel's subsequent references to the insurance company constituted invited evidentiary error. (Id. at p. 609.)

 Unlike Zarafonitis, however, here defense counsel sought to preclude the court from considering the statement on the notice of claim to the insurance company. The court permitted the statement, reasoning that it was an admission. The court erred in admitting the evidence. (See Evid.Code, § 1155 [prohibiting evidence of insurance coverage to prove negligence]; Menefee v. Williams (1968) 259 Cal.App.2d 56, 62 [error to admit statement of insurance that is not part of an admission of fault].) The "admission" here was simply Kuhlmann's acquiescence to the insurance company's making payment on the claim. It was not an admission of fault and did not prove that he was negligent. (Ibid.)

 The court's error in admitting the evidence was not prejudicial. In its statement of decision, the trial court explained that it did not consider the existence of the notice of claim to establish evidence of insurance and did not consider the issue of insurance in making its decision. To the extent the court considered the evidence as an admission of malpractice and as a prior inconsistent statement, its admission was harmless. There was ample evidence apart from the admission to support the trial court's decision. The trial court made numerous comments regarding the credibility of plaintiffs' experts as compared to the lack of credibility of Kuhlmann and Dr. Rantanen, and concluded that "the overwhelming evidence in this case, including much of the testimony of the defendant[s'] retained specialist, establishes the 'disclosure' fell well below the standard of care." On this record, the error in admitting the evidence was not prejudicial.

III. DISPOSITION

The judgment is affirmed.


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