Kelley v. Gay CA1/3

Filed 11/3/26 Kelley v. Gay CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE VINCENT KELLEY et al., Plaintiffs and Appellants, A171998 v. ANDRE NICHOLAS GAY, (Alameda County Super. Ct. No. HG20061238) Defendant and Respondent. In this medical malpractice action, plaintiffs Vincent Kelley (Kelley) and Kim Kelley (jointly, plaintiffs) appeal a jury verdict in favor of defendant Andre Nicholas Gay, M.D., in which the jury found Dr. Gay was not negligent in the care and treatment of Kelley. Plaintiffs contend the trial court improperly excluded certain evidence in connection with three different medical experts. Plaintiffs further contend they were prejudiced by the improper admission of insurance information, and the various errors denied them a fair trial. We disagree and affirm the judgment. BACKGROUND In 1997, Kelley had right hip surgery to repair a hip fracture following a fall. After experiencing increasing pain over the years in both hips, Kelley was referred to Dr. Gay. Kelley was diagnosed with severe arthritis in both hips, with the right described as posttraumatic and the left as dysplastic. 1 The proposed resolution for the left hip was a total hip arthroplasty, which occurred in March 2019. The following month, Kelley returned to Dr. Gay with complaints about severe pain and limited mobility in his right hip. Dr. Gay recommended removal of existing hardware in the right hip and a right hip replacement. Kelley consented to the surgery, which occurred in May 2019. Kelley immediately felt extreme pain following the surgery and believed something was wrong. An X-ray taken at the postoperative visit in late May indicated that the right hip cup had migrated into the pelvis (a condition referred to as protrusio), which generally occurs when the hip socket fractures. Dr. Gay advised that revision was likely needed, and Kelley was transferred to Stanford University to receive a higher level of care. Dr. Derek Amanatullah evaluated Kelley and noted he was “ ‘largely bed . . . and gurney bound’ ” due to significant pain and severe limitations, including “ ‘stiff, sharp pain’ ” in his groin, “ ‘swelling . . . in his lower extremity,’ ” and “ ‘staples in his right hip.’ ” Dr. Amanatullah conducted a complex right hip revision, which included removal of the femoral stem, bone grafting, placement of a larger acetabular cup, and a modular long femoral stem implant. Kelley completed his postoperative therapy and recovery and, at the one-year follow-up, reported no pain and was active with a walker. Plaintiffs filed a medical malpractice complaint against Dr. Gay. The complaint alleged Dr. Gay was negligent in “the examination, diagnosis, care, custody, control, supervision, monitoring[,] and treatment” of Kelley, failed to adequately warn Kelley of the surgery risks, and utilized inappropriate equipment in performing Kelley’s surgery. As to Kim Kelley, the complaint alleged loss of consortium, substantial disturbance to plaintiffs’ marriage, 2 and deprivation of the care, comfort, protection, society, support, and services of Kelley. In the course of litigation, plaintiffs’ counsel contacted Dr. Amanatullah and requested he provide a written summary of his opinion regarding the reparative surgery. In response, Dr. Amanatullah provided a two-page letter summarizing the medical issues presented by Kelley and the corrective steps taken by Dr. Amanatullah. Dr. Amanatullah identified four “observations” regarding Dr. Gay’s surgery: (1) “The complexity of the femoral anatomy was grossly under appreciated by Dr. Gay”; (2) “Dr. Gay did not realize the cup was not in an acceptable position”; (3) “There is a gross lack of appreciation of boney anatomy”; and (4) “There is a severe lack of understanding of appropriate acetabular position.” In advance of trial, Kelley designated Dr. Amanatullah as a nonretained expert, and his letter was attached to that expert disclosure. Kelley’s Motion in Limine No. 1 and the Trial Testimony of Dr. James Chen Kelley filed a motion in limine to exclude defense expert James L. Chen. He claimed Dr. Chen lacked the requisite experience and qualification to opine on the type of hip replacement surgery performed by Dr. Gay on Kelley as he had no experience in protrusio or a pelvic collapse in hip surgery patients, had not been fellowship trained in arthroplasty, and had never been qualified as an expert on the subject of complex primary or revision hip surgery. Kelley also emphasized that because Dr. Chen was board certified rather than fellowship trained, he applied a “different standard[] of care.” In response, Dr. Gay argued that the issues raised in Kelley’s motion went to the weight to be given Dr. Chen’s testimony, and not its admissibility. Dr. Chen was both board certified and fellowship trained, and had completed a fellowship in orthopedic surgery, “which included training 3 on joint replacement.” Dr. Gay argued that Dr. Chen’s undisputed surgical experience—50 to 60 hip replacements annually, of which approximately 20 percent were complex primary hip replacements—provided a sufficient basis to opine on the standard of care for performing a complex primary hip replacement. Further, while none of Dr. Chen’s patients developed protrusio or pelvic collapse, as occurred with Kelley after the surgery, Dr. Chen had seen patients with those conditions, was aware of that possibility, and remained familiar with the standard of care for addressing such complications. The court denied the motion without prejudice, emphasizing that plaintiffs’ counsel may “raise objections to specific questions that may or may not lack foundation.” At trial, Dr. Chen testified regarding his education, training, and surgical experience. He completed an orthopedic surgery residency at the University of Hawaii, during which he worked with the head of joint replacement and performed approximately 300 to 400 hip replacements. He served as chief resident during his final year, supervising junior residents and receiving the most clinical exposure among the residents. Dr. Chen explained the orthopedic surgery residents receive training comparable to that of a fellowship trainee at the University of California, San Francisco (UCSF). Dr. Chen subsequently completed a fellowship at UCSF in sports medicine and arthroplasty and worked at UCSF as a clinical assistant professor. Based on his experience at UCSF, Dr. Chen explained that an orthopedic resident at UCSF would conduct approximately 100 hip replacement surgeries, and a fellow would conduct 250; he thus noted he received more clinical exposure during his residency program than he would 4 have through either UCSF program. He estimated that approximately 80 percent of hip replacement surgeries in the Bay Area and more than 50 percent nationally are performed by surgeons who have not completed an arthroplasty fellowship. Dr. Chen also obtained board certification in orthopedic surgery and orthopedic sports medicine. He explained the certification process required physicians to collect cases during their first year or two of practice and defend 12 cases in a live presentation before the board. Regarding his current practice, Dr. Chen testified he conducts approximately 50 to 60 hip joint replacement surgeries per year and had performed approximately 500 to 600 hip replacement surgeries over the course of his career. Revision hip replacements account for approximately 20 to 25 percent of his practice, and he had performed complex hip replacements approximately 100 to 150 times. Dr. Chen also testified that he had treated patients with protrusio “on numerous occasions.” Dr. Chen concluded by noting he had been qualified as an expert in court 10 times. When plaintiffs’ counsel sought to conduct voir dire of Dr. Chen, the court intervened, stating, “I think it’s clear [Dr. Chen] is qualified to testify as an expert.” The court nevertheless emphasized that Dr. Chen would remain “subject to cross-examination on the issues that I see that you would like to raise.” Dr Gay’s Motion in Limine No. 2 and Trial Testimony of Dr. Derek Amanatullah Dr. Gay filed a motion in limine to exclude the correspondence between plaintiffs’ counsel and Dr. Amanatullah, including Dr. Amanatullah’s two- page letter. The motion asserted that Dr. Gay had requested these materials 5 through both a deposition subpoena to Dr. Amanatullah and a document production request. The motion further asserted that Kelley did not serve any written objection to the deposition subpoena, failed to produce the correspondence at the deposition, and then objected to the document production request based on the attorney-client and work product privileges. Plaintiffs’ counsel ultimately produced the letter with the expert disclosure identifying Dr. Amanatullah as a nonretained expert. Dr. Gay sought exclusion of the correspondence as an evidentiary sanction, inadmissible hearsay, and improper cumulative opinion evidence. Kelley opposed the motion, arguing among other things that an evidentiary sanction was unavailable, the letter was properly disclosed in expert discovery, the privilege objections were appropriate, and Dr. Gay should have moved to compel production if he believed the correspondence was improperly withheld. The trial court granted the motion. However, the court held that Kelley could introduce the evidence and Dr. Amanatullah’s opinions “through live testimony.” Before Dr. Amanatullah testified, counsel and the court discussed the permissible scope of his testimony. The court explained that, because Dr. Amanatullah was not designated as a standard of care expert, he would not be allowed to answer questions about his opinion. But because he was deposed about opinions he formed while treating Kelley, the court permitted him “to testify about whether he formed any opinions at the time of treatment with respect to [Kelley’s] condition, the reasons for that condition[,] and . . . if he had opinions at that time that were explored at the deposition as to whether Dr. Gay did something appropriately or not appropriately.” 6  At trial, Dr. Amanatullah identified several concerns regarding Kelley’s hip X-ray, including the positioning of the cup and indications that the hip may be “loose.” In other words, Dr. Amanatullah testified that the hip socket was not stable and constituted “a catastrophic type of injury” that required urgent correction. Dr. Amanatullah also conducted various pre-surgical evaluations to assess whether Kelley was experiencing an infection, ensure he did not have a blood clot, and evaluate the “relationship of this cup to the bone that’s leftover and the vessels that are close to it.” Dr. Amanatullah testified he sent a letter to Dr. Gay as part of his standard protocol. In that letter, Dr. Amanatullah stated he attempted to confirm the surgical history and the way Kelley’s medical issues were presenting, as well as identify certain issues—such as the extent of the March procedure—about which he was uncertain. Dr. Amanatullah stated he did not receive a response from Dr. Gay, but acknowledged it was not unusual to receive no response to these types of letters. Dr. Amanatullah also testified about a billing justification letter he prepared shortly after the corrective surgery, which identified eight issues that had to be addressed in the surgery to support an increased cost for the surgery based on its complexity. Plaintiffs’ counsel then asked Dr. Amanatullah whether he had formed any impressions about Kelley’s condition when examining him after the surgery. Dr. Amanatullah acknowledged that Kelley (through counsel) had requested he write down his observations about the surgery. He explained that the letter “detailed many of the complexities that [he] talked about [at trial],” but clarified that he “didn’t necessarily have all the information” and “hadn’t looked at previous operative notes, previous records, [or] previous x- 7 rays.” Dr. Amanatullah acknowledged there are “multiple reasons and multiple sources about why something like this could occur.” On cross-examination, Dr. Amanatullah clarified various comments he made regarding the May surgery. For example, he discussed his comment that the femur implant was loose, explaining he was not being critical of the May surgery and noting, “It’s entirely possible that I loosened it, too.” Dr. Amanatullah also testified the femur was not fractured when he began the surgery, but he made a controlled fracture as part of the surgery. He clarified his statement that “it is ten out of ten bad” as not a criticism of Dr. Gay but a “reference[ to] the difficulty of the future surgery and the current position of [Kelley].” Likewise, Dr. Amanatullah’s statement that he had to remove extra bone was not a criticism of Dr. Gay but an explanation of the complexity of the surgery and a task that needed to be completed in connection with the hip revision surgery. Dr. Amanatullah stated extra bone growth could result from trauma or simply from the surgery itself, and he could not determine the cause of the bone growth. Dr. Amanatullah further testified his statement that he used a different cup size than used by Dr. Gay was simply based on the situation he encountered during surgery, it was not a critique of the cup size used by Dr. Gay, and he would disagree with the claim that Dr. Gay’s use of a different cup size indicated an error by Dr. Gay. He also stated he used a longer stem because of the fracture he made to perform the surgery, but the length of stem he used was unrelated to the appropriate-length stem in Dr. Gay’s surgery. Finally, Dr. Amanatullah stated he did not form an opinion as to (1) how or when Kelley’s acetabular fracture occurred, including whether it was caused by Dr. Gay, or (2) whether there was any mismatch between reaming and the cup placed by Dr. Gay. 8 Dr. Gay’s Motion in Limine No. 4 In his expert disclosures, Kelley identified Dr. Erik Hansen as an expert on the standard of care related to orthopedic surgery, including hip replacement surgery, the breach of the standard of care by Dr. Gay in his treatment of Kelley, the course of treatment, and the resulting harms and losses suffered by Kelley. The supporting declaration identified Dr. Hansen’s experience performing hip replacements, with approximately 15 to 20 percent of those constituting complex primary, conversion, or revision surgeries. In advance of trial, Dr. Gay filed a motion in limine seeking to preclude Dr. Hansen from offering any opinions, comments, or criticisms that Dr. Gay’s treatment of Kelley’s left hip replacement surgery in March 2019 fell below the standard of care. In relevant part, Dr. Gay argued the medical malpractice complaint only challenged the adequacy of the May right hip replacement surgery, the expert disclosure did not state Dr. Hansen would offer any opinions concerning the earlier March surgery, and he did not offer any standard of care opinions about the March surgery at his deposition. The motion further argued Dr. Hansen’s attempt to demonstrate a “pattern” by discussing the left hip replacement would be more prejudicial than probative because it would require a second trial on the adequacy of the March surgery, which would confuse the jury and necessitate an undue consumption of time. Kelley acknowledged his claims were not based on the March surgery. He nevertheless argued that evidence concerning that procedure would demonstrate Dr. Gay’s lack of training, “ignorance,” and provide relevant context for explaining “how and why the standard of care was breached with the May 2019 right hip surgery.” The trial court granted the motion under Evidence Code section 352. It concluded the probative value of the March surgery was outweighed by the 9 potential to confuse the jury and the undue consumption of time. Admitting the evidence would necessitate “a side trial on whether the hip surgery, in March of 2019, was right or not,” and the court did not “want to have a mini trial about the March 2019 left hip surgery when what’s at issue in this case is a later right hip surgery.” Jury Verdict The jury returned a unanimous verdict for Dr. Gay, concluding he was not negligent in the medical care and treatment of Kelley. Plaintiffs appealed. While both plaintiffs are listed as appellants in the notice of appeal, the issues on appeal focus on the medical malpractice claim brought by Kelley. DISCUSSION Kelley contends the trial court erred by precluding Dr. Amanatullah’s letter, limiting his ability to cross-examine Dr. Chen about Dr. Amanatullah’s letter, and excluding evidence about Kelley’s earlier March hip replacement surgery. Kelley further argues that the trial court erroneously permitted evidence about his insurance. We are not persuaded. I. Standard of Review The trial court has “ ‘broad authority’ ” over the admission and exclusion of evidence. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295–296.) We review its rulings on motions in limine for an abuse of discretion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493.) Under this standard, however, we review factual findings for substantial evidence; we review conclusions of law, such as the interpretation of a statute, de novo; and we only reverse the application of the law to the facts if arbitrary and capricious. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712.) 10  In exercising its discretion, the trial court determines “whether the probative value of relevant evidence is outweighed by a substantial danger of undue prejudice.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 596.) An appellate court does not disturb that determination unless it falls “beyond the bounds of reason” and results in a “manifest miscarriage of justice.” (Ibid.) The appellant bears the burden of demonstrating an abuse of discretion. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957.) With these principles in mind, we turn to the specific evidentiary rulings challenged on appeal. II. Expert Witnesses Kelley challenges certain evidentiary rulings by the trial court related to three different expert witnesses: Dr. James Chen, Dr. Derek Amanatullah, and Dr. Erik Hansen. We address each in turn. A. Dr. James L. Chen 1. Cross-examination Kelley contends the trial court erred by sustaining a relevance objection when he attempted to cross-examine Dr. Chen about Dr. Amanatullah’s letter and expert disclosure. He argues the letter and disclosure “go to the heart of the issue in dispute and upon which questioning of the witness had occurred,” and notes that Dr. Chen testified he had reviewed the disclosure. Kelley further asserts that “[t]he topic of examination was not generated by plaintiffs’ counsel, but instead consisted of follow-up questions necessitated on account of Dr. Chen’s testimony.” As an initial and fundamental matter, Kelley has failed to support his argument with record citations, which is fatal to his claim. California Rules of Court, rule 8.204(a)(1)(C), requires appellate briefs to “[s]upport any reference to a matter in the record by a citation to the volume and page 11 number of the record where the matter appears.” A party’s failure to support an argument with the necessary record citations waives the argument. (Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241, 1253.) The rule applies to matters referenced throughout the brief, not merely those discussed in the statement of facts. (Ibid.) As explained in Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, footnote 8, this rule enables the reviewing court to locate relevant portions of the record without having to search through earlier portions of the brief. Accordingly, “courts will decline to consider any factual assertion unsupported by record citation at the point where it is asserted.” (Ibid.) Here, Kelley fails to identify either the portion of the trial transcript containing the objection and ruling he challenges or the testimony that purportedly opened the door to such questioning. Without these citations, we cannot evaluate Kelley’s claim that the trial court’s restrictions on Dr. Chen’s testimony were improper. Kelley’s failure to support his argument with the required record citations is fatal to his claim of error. Moreover, we note that the legal principles upon which Kelley relies do not authorize Kelley’s proposed examination. Kelley points to Evidence Code sections 721 and 780, pursuant to which a party may cross-examine an expert about the extent of the expert’s knowledge, the bases for the expert’s opinions, the facts, evidence, and materials the expert considered, and the expert’s qualifications; a party may also impeach an expert witness by contradiction, i.e., by showing the falsity of any matter upon which the expert based his opinion. (See Evid. Code, §§ 721, subd. (a), 780, subd. (i); Kennemur v. State of California (1982) 133 Cal.App.3d 907, 922.) 12  Even assuming Dr. Chen reviewed Dr. Amanatullah’s letter and disclosure, Kelley does not assert that Dr. Chen relied on these materials in forming his opinions, expressed any view as to their merit or accuracy, or addressed their contents in a manner bearing on his qualifications. Thus, Kelley identified no basis for using the letter and disclosure to examine Dr. Chen on his opinions or qualifications, or impeach Dr. Chen by contradiction. On this point, Kennemur v. State of California, supra, 133 Cal.App.3d 907 is instructive. There, the appellate court explained that “[t]he rationale for permitting impeachment by contradiction is that by showing the falsity of a fact asserted by the expert, his entire testimony is brought into question.” (Id. at p. 923.) The court cautioned, however, that trial courts must distinguish between foundational facts and opinions. (Id. at p. 924.) Foundational facts must be “strictly construed by the trial court to prevent a party from offering a contrary opinion of his expert under the guise of impeachment.” (Ibid.) Here, the letter and disclosure did not challenge foundational facts underlying Dr. Chen’s opinions, such as the details of the hardware used or the location of its replacement. Rather, Kelley sought to introduce a contrary expert opinion under the guise of impeachment—the very use that Kennemur prohibits. The fact that Dr. Chen had reviewed the disclosure does not, without more, establish a proper basis for examining him about the substance of the letter and disclosure. The trial court therefore did not err in sustaining the relevance objection. Nor do we find merit with Kelley’s reliance on Evidence Code section 356 as an alternative basis for admission of the letter. Section 356 provides in relevant part, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party.” The statute “is founded not on reliability 13 but on fairness so that one party may not use ‘selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.’ ” (People v. Parrish (2007) 152 Cal.App.4th 263, 273.) Here, Dr. Chen’s testimony that he reviewed the expert disclosure did not open the door to a detailed cross-examination about the substance of Dr. Amanatullah’s letter. Dr. Chen merely acknowledged he reviewed the disclosure, without discussing or expressing an opinion about its contents. He did not place the disclosure or attached letter into evidence. Nor did he create a misleading impression about the subjects they addressed. As such, section 356 does not support admission of the letter or the proposed examination. Finally, Kelley asserts that the restriction on his cross-examination of Dr. Chen denied him a fair trial. Because Kelley has not demonstrated error in the trial court’s evidentiary ruling, his claim that the ruling deprived him of a fair trial likewise fails. 2. Kelley’s Motion in Limine No. 1 Kelley contends the trial court erred in denying his motion in limine to exclude Dr. Chen’s standard of care opinions because he lacked the requisite qualification and experience to opine on the specific type of hip replacement surgery performed by Dr. Gay. He argues Dr. Chen had never treated a patient who suffered protrusio or a pelvic collapse, had never been qualified as an expert in complex primary or revision hip replacement surgery, and was not an arthroplasty fellow. The record does not support these assertions. As noted above, we review the admission of expert opinion testimony for an abuse of discretion. (People v. Jackson (2013) 221 Cal.App.4th 1222, 1237.) Under this deferential standard, Kelley must demonstrate that the trial court exceeded the bounds of reason or entered a ruling “ ‘so irrational or 14 arbitrary that no reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) As with the prior argument, Kelley again fails to cite any specific testimony or other evidence in the record supporting his claim that Dr. Chen lacked the qualifications to opine on the applicable standard of care. Further, the record affirmatively demonstrates substantial experience in the relevant field as detailed in the factual summary set forth above, which directly undermines Kelley’s contention that Dr. Chen lacked the requisite experience. The record establishes that Dr. Chen received substantial training in arthroplasty, completed a fellowship in the field, regularly performs hip replacement and revision surgeries, and has extensive experience with complex hip replacements and patients with protrusio. Kelley’s emphasis on the absence of a particular fellowship designation or prior qualification as an expert in complex hip surgery does not negate that experience. Nor does he identify evidence contradicting Dr. Chen’s testimony regarding his training and clinical practice. On this record, the trial court did not abuse its discretion in allowing Dr. Chen to testify as an expert on the standard of care. B. Dr. Derek Amanatullah 1. Exclusion of the Letter Is Not Reversible Per Se Kelley first contends that exclusion of Dr. Amanatullah’s letter denied him a fair trial and therefore constitutes reversible error per se. He argues Dr. Amanatullah was Kelley’s treating physician, the letter reflects Dr. Amanatullah’s opinions based on “first-person observations,” and its exclusion “denied plaintiffs the opportunity to fully attack the defendant’s case.” According to Kelley, the jury verdict demonstrates that the exclusion 15 of the letter and Dr. Amanatullah’s testimony “unduly hampered plaintiffs’ ability to prove causation [and] denied them a fair trial.” An erroneous evidentiary ruling is reversible per se when the trial court excludes “all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven.” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114.) Such an error deprives the affected party of a fair hearing and the opportunity to demonstrate actual prejudice. (Ibid.) This case presents neither circumstance. And Kelley’s argument overlooks a critical distinction: although the trial court excluded the letter, it expressly permitted Dr. Amanatullah to convey the information in the letter through his trial testimony. Dr. Amanatullah did so, and the exclusion of the letter did not limit the scope of his testimony. Indeed, he confirmed that his trial testimony encompassed the issues raised in the letter, explaining the letter “detailed many of the complexities that [he] talked about [at trial].” Thus, the court did not exclude the opinions or underlying information Kelley sought to present. It only excluded the letter as a separate piece of evidence. The cases on which Kelley relies are materially distinguishable because they involve the exclusion of, or substantial restrictions on, evidence necessary to present a party’s case. (See, e.g., Caldwell v. Caldwell (1962) 204 Cal.App.2d 819, 821 [trial court erred in refusing to permit wife to present evidence as to child’s needs]; In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 292 [court improperly curtailed the parties’ right to present evidence, rushed counsel through her presentation, and abruptly ended trial in the middle of a witness’s testimony].) Here, by contrast, Dr. Amanatullah testified about his opinions and his experience treating Kelley. And Kelley has not identified any information contained in the letter that he was prevented from presenting through Dr. Amanatullah’s testimony. 16  Nor does the jury’s verdict establish that excluding the letter deprived Kelley of a fair trial. The relevant issue is whether the ruling prevented him from presenting evidence essential to his claims, not whether the jury ultimately accepted his position. Because Kelley was permitted to offer Dr. Amanatullah’s opinions and the information contained in the letter through his testimony, the exclusion did not deprive Kelley of a fair trial or infringe on his right to due process. 2. Remaining Arguments Kelley advances several additional arguments in support of his contention that the trial court abused its discretion in excluding Dr. Amanatullah’s letter. He argues the jury: (1) was denied an opportunity to hear relevant evidence from Dr. Amanatullah, and (2) was not given the “complete context” for Kelley’s claims “in the absence of Dr. Amanatullah’s testimony and Letter.” Kelley further contends the court erroneously attributed the failure to produce the letter in response to a subpoena to Kelley rather than Stanford University and Dr. Amanatullah, Dr. Gay did not move to compel production during discovery, and Dr. Gay had sufficient time to conduct additional discovery after the parties exchanged expert disclosures. Kelley’s arguments suffer from three fundamental flaws. First, Kelley again fails to support his factual assertions with citations to the record. He does not identify any evidence supporting his claim that the jury was misled and cites none of the discovery documents relevant to his arguments. As discussed above, appellate briefs must support factual assertions with citations to the record, and their failure to do so forfeits these arguments. (Conservatorship of Kevin A., supra, 240 Cal.App.4th at p. 1253 17 [“ ‘ “[I]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived.” ’ ”].) Second, Kelley repeatedly asserts that excluding the letter deprived the jury of Dr. Amanatullah’s testimony and left it without the complete context of Kelley’s claims. But this argument conflates exclusion of the letter with exclusion of the witness. Dr. Amanatullah testified extensively at trial, and plaintiffs’ counsel examined him about his assessment and treatment of Kelley. Kelley thus had the opportunity to present these opinions and the relevant information contained in the letter through Dr. Amanatullah’s testimony. Kelley’s assertion that the court excluded Dr. Amanatullah’s testimony is contradicted by the record. Third, even assuming these arguments as set forth above have merit— which we doubt—Kelley has not demonstrated prejudice. An evidentiary error resulting from an exercise of discretion is reviewed for prejudice under the Watson1 harmless error standard. (People v. Mullens (2004) 119 Cal.App.4th 648, 659.) Under that standard, “ ‘a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Ibid.) Here, Dr. Amanatullah testified at trial, and plaintiffs’ counsel was able to—and did—inquire into his assessment and treatment of Kelley. Kelley was not prohibited from eliciting the information contained in the letter; he simply was required to do so through Dr. Amanatullah’s direct testimony rather than introduce the letter itself into evidence. Kelley identified no material information in the letter that he was prevented from 1 People v. Watson (1956) 46 Cal.2d 818. 18 presenting through that testimony. Accordingly, he has not established a reasonable probability of a more favorable result had the letter been admitted. Any error does not warrant reversal.2 C. Dr. Erik Hansen Kelley contends the trial court erred by limiting Dr. Hansen’s testimony to the May right hip replacement surgery at issue and excluding testimony concerning the earlier March left hip replacement surgery. The trial court has discretion to exclude relevant evidence under Evidence Code section 352 “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The standard of review is abuse of discretion. (People v. Harris (2013) 57 Cal.4th 804, 845.) Here, the trial court reasonably concluded that evidence concerning the March left hip replacement surgery had little, if any, relevance to whether the May right hip replacement fell below the standard of care. The two surgeries involved different hips that presented different medical conditions and required different surgical approaches. The left hip was dysplastic, meaning it had an abnormal cup shape, and required a primary hip replacement. The right hip, by contrast, had sustained previous trauma and contained existing hardware, and it required a conversion hip replacement. Kelley has not established that the procedures were analogous in any meaningful respect. Nor has he identified evidence showing that the surgeries involved similar surgical techniques or presented comparable 2 Based on the foregoing, we need not address whether the letter constituted inadmissible hearsay, whether it was properly excluded as a discovery sanction, or whether Kelley waived any claim of privilege. 19 postoperative concerns. Instead, Kelley asserts—without supporting record citations or further explanation—that evidence of the March surgery was relevant to demonstrate Dr. Gay’s alleged lack of experience and to support Dr. Hansen’s conclusion that the May surgery fell below the standard of care. We are not persuaded. Moreover, even assuming the evidence had some marginal relevance, the trial court did not abuse its discretion in concluding its limited probative value was substantially outweighed by the undue consumption of time and the danger of confusing the jury.3 Introducing evidence concerning the March procedure would have required the parties to litigate its adequacy, effectively creating a separate trial within the trial. (See People v. Hamilton (2009) 45 Cal.4th 863, 930 [trial court did not abuse its discretion under Evid. Code, § 352 by excluding evidence that “would have required ‘a mini- trial’ ” and “was of limited probative value”].) Such a detour risked diverting the jury from the actual question before it: whether Dr. Gay met the standard of care in performing the May hip replacement. The trial court was entitled to find that such a distraction outweighed any limited probative value. “[T]he trial court’s ruling will be upheld in the absence of a manifest abuse of discretion resulting in a miscarriage of justice.” (Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1137.) Because the trial court properly balanced the probative value against the risks of an undue consumption of time and jury confusion, Kelley has not demonstrated an abuse of discretion. 3 Kelley argues the evidence was not unduly prejudicial. But the trial court did not exclude the evidence on that basis. 20 III. Admission of Insurance Evidence Kelley raises various arguments challenging the admissibility of his Medicare and Medi-Cal eligibility and insurance benefits. We need not address whether the trial court erred in admitting such evidence because Kelley cannot demonstrate “ ‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (People v. Mullens, supra, 119 Cal.App.4th at p. 659.) The jury found Dr. Gay was not negligent in the medical care and treatment of Kelley. Because they found Dr. Gay not negligent, the jury never reached the issue of Kelley’s damages and noneconomic loss. While Kelley claims the verdict is “tainted” by the jury’s consideration of insurance benefits, he offers no evidence to support his position. Nothing in the record suggests the jury considered insurance benefits when deciding the question of liability. Accordingly, any error in admitting evidence related to the amount of damages needed to compensate Kelley for his current and future medical costs had no bearing on the ultimate outcome—i.e., lack of liability. Kelley thus has not demonstrated prejudice. DISPOSITION The judgment is affirmed. Dr. Gay may recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).) 21  PETROU, J. WE CONCUR: FUJISAKI, Acting P. J. RODRÍGUEZ, J. A171998 / Kelley v. Gay 22