Legal News

RECENT DECISION HOLDING PLAINTIFF CANNOT DEMONSTRATE EXISTENCE OF A TRIABLE ISSUE OF FACT BY RELYING ON PORTIONS OF AN EXPERT DECLARATION THAT WERE SPECULATIVE, NOT BASED ON THE EVIDENCE AND PROPERLY EXCLUDED BY THE TRIAL COURT

In Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 17 C.D.O.S. 1066, the Fifth Appellate District of the California Court of Appeal found no error by the trial court and affirmed the court’s grant of defendant’s motion for summary judgment (MSJ). Defendant’s MSJ was supported by multiple expert declarations which were based upon a detailed timeline of events, as well as the medical records and other evidence, while plaintiff’s expert’s declaration in opposition to the motion was speculative and not based on or supported by the evidence of the case. Defendant’s objections to the declaration were properly sustained by the trial court, and the objectionable portions of the declaration could not be relied upon to create a triable issue of fact.

Plaintiff’s action arose out of injuries he sustained while playing a high school football game. After suffering a head injury during play, plaintiff was examined on the sidelines by his coaches, who waved to the ambulance and paramedic crew that was on standby at the game. On the sidelines, plaintiff appeared stable and scored highly on the Glasgow scale for head injuries, yet the paramedic on scene recommended plaintiff go to the hospital and plaintiff agreed. Spinal precautions were taken and the plaintiff was placed in the stand-by ambulance; a back-up ambulance was radioed to take plaintiff to the hospital. The transport ambulance arrived approximately four minutes after it was called. Once in the transport ambulance, plaintiff deteriorated due to what was diagnosed at the hospital as a right-sided subdural hematoma. He underwent surgery to relieve intracranial pressure and at some point suffered a posterior artery stroke.

A detailed, to-the-minute timeline was part of the evidence before the court. Plaintiff alleged violation of the statutes that set out responsibilities of paramedics and professional negligence; a showing of “gross negligence” is the standard applied to prove negligence of EMTs under Health & Safety Code section 1799.106. As with other medical negligence cases, plaintiff must have an expert who will testify that the defendant EMT breached its duty to the plaintiff and that the breach caused plaintiff’s injuries. Plaintiff claimed defendant did not timely or properly assess the patient’s condition, transport him properly or determine the extent and urgency of his injury, and as a result, he suffered serious physical injury.

Defendant moved for summary judgment on the grounds there was no evidence to support plaintiff’s allegations of gross negligence or causation of any of plaintiff’s injuries. The timeline was key to the defendant’s opposition; defendant showed through the detailed timeline, expert declarations and extensive citation to medical literature, that anything defendant did or did not do was not a cause of plaintiff’s injuries. Plaintiff’s opposition to the MSJ was supported by a single expert declaration that was replete with conjecture and assumptions neither based upon nor supported by the evidence. Plaintiff’s expert, Mobin, admitted that he had not read the declarations of defendant’s experts, nor the literature on which they relied, and portions of his declaration were assumptions and conjecture that had no support in the evidence of the case. Because of the speculative nature of plaintiff’s expert’s declaration, defendant objected to several portions of the declaration on the grounds the “statements lacked foundation and were conclusory and speculative” or irrelevant. The court sustained the objections because plaintiff’s expert’s assumptions were not supported by the admitted facts of the case, did not reference particular times of events, and “repeatedly referred to ‘delay,’ without defining that term,” among other things . Plaintiff contended on appeal that “none of the objections should have been sustained,” and in so ruling, the trial court erred.

Plaintiff argued that declarations in opposition to a MSJ must be liberally construed. The court said that may be the case, but “applying a liberal construction” does not mean that an expert’s opinions will be admissible if they “assume facts contrary to the undisputed facts of the case.” Here, plaintiff’s expert’s declaration “failed to show that his conclusions regarding causation—that the delay jeopardized plaintiff’s recovery and contributed to a more severe brain injury—were ‘[b]ased on matter…that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.(Evid. Code section 801, subd. (b).) This was not a case in which the experts relied on different medical studies or different interpretations of the medical literature to support their opinions; in such a case, the court on summary judgment cannot weigh the merits of the opinions or their foundations, but must leave that task to the trier of fact. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 186–187.) Rather, the defense experts challenged the bases of Mobin’s opinions and showed the assumptions on which the opinions were founded were not valid, according to the medical literature. Mobin made no contrary showing. Plaintiff did not refute defendant’s showing that Mobin’s opinions were based on assumptions of fact without evidentiary support or on speculative or conjectural factors. Such expert opinions have no evidentiary value and may be excluded from evidence. (Relying on Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770; and Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.)

The court held there was no abuse of discretion on the part of the trial court, since plaintiff’s expert “considered a significantly incomplete universe of information.” The appellate court observed that Mobin apparently “did not take into account the undisputed evidence” relating to the assessment of the plaintiff or the timeline of events the evening plaintiff sustained the head injury during the football game.

The defendant set out to prove plaintiff could not show a breach of the duty of care (gross negligence by the EMT) or causation; plaintiff could not create a triable issue of fact on those issues. Plaintiff did not contend “defendant failed to meet his initial burden of producing evidence to make a prima facie showing that the undisputed facts entitled it to judgment as a matter of law. (Cite omitted.) Rather, plaintiff contend[ed] he met his burden of showing the existence of a triable issue of fact in response.” The court disagreed; the portions of Mobin’s declaration on which plaintiff relied to create a triable issue were properly excluded by the trial court following defendant’s objections. Because plaintiff did not raise a triable issue of fact on the issue of causation, the appellate court held there was no error and affirmed.

This decision is worth reading in full if you have a pending MSJ or are planning to file one. The court describes the defense and plaintiff expert declarations in some detail, and the contrasts are stark; the phrasing of the objectionable and excluded parts of plaintiff’s expert’s declaration provide a good illustration of what an expert should not say and will help illustrate objectionable portions of declarations one might encounter in practice. There is also an interesting discussion about judicial notice that was tangential to the discussion of the court’s ruling (and is therefore not mentioned in the summary above), but is worth a quick read. Finally, the court’s opinion provides a good counterpoint to the “liberal construction” argument regarding declarations in opposition to MSJs.

For more information on this and other recent decisions, please reach out to Reneé A. Richards.