Legal News

Court of Appeal Holds Plaintiffs’ Expert’s Declaration Sufficient To Create Triable Issue By Relying On Medical Records Submitted And Authenticated By Moving Party

On September 22, 2011, Division Eight of the Court of Appeal, Second Appellate District, published its previously issued but unpublished opinion in Shugart v. Regents of the University of California (2011) 11 C.D.O.S. 12223. Appellants Christine and Michael Shugart had sued the Regents, Ja Hong Kim, M.D., and another surgeon, Linda Warren, M.D. for medical negligence.1 All defendants prevailed on summary judgment at the trial court level, and the Shugarts appealed. The appellate court affirmed summary judgment in favor of the Regents, but reversed the grant of the summary judgment as to Dr. Warren. In doing so, the court held that the plaintiff's expert's declaration was sufficient to raise a triable issue of fact as to Dr. Warren's negligence even though it did not contain specific citations to and copies of pertinent medical records that had been offered and authenticated by the moving party. In doing so, the court clarified the application of Garibay v. Hemmat (2008) 161 Cal.App.4th 735 to counterdeclarations in opposition to motions for summary judgment.

When she consulted Dr. Warren, Christine Shugart had been experiencing urinary incontinence and difficulty with defecation for several years. Dr. Warren performed transvaginal tape placement and a posterior vaginal repair, but the patient developed complications including an infection. Dr. Warren eventually referred Mrs. Shugart to UCLA Medical Center where she was treated by Drs. Raz and Kim. In November 2008, plaintiffs sued Dr. Warren, Dr. Kim and the Regents for medical negligence and loss of consortium. According to the pleadings, Dr. Raz's surgical repair procedures were "to very good effect," and he was not named in the complaint.

Both Dr. Warren and the Regents filed motions for summary judgment. Both motions were supported by expert declarations, excerpts from the medical records, and select discovery responses and deposition excerpts. Plaintiffs opposed both motions, and in support of their oppositions filed declarations by Mrs. Shugart and an expert witness, Dr. Donald Ostergard. Dr. Ostergard opined that the standard of care was not met by Drs. Warren, Raz and Kim.

The hearings on the motions were scheduled and tentative rulings were issued in favor of both moving parties on the grounds that plaintiff's expert's declarations in opposition to both motions were "deficient and lacking evidentiary value since they failed to refer to the materials on which Dr. Ostergard relied in forming his opinions" per Garibay v. Hemmat. At the hearing on the Regent's motion (both motions had been set for the same day), plaintiffs orally requested a continuance in order to cure the defects in their expert's declarations. The court set a hearing for a week later to allow plaintiffs to file a written motion for continuance on shortened notice. Several days later the court entertained argument on Dr. Warren's motion and took it under submission. With their written motion to continue, the plaintiffs offered supplemental expert declarations which contained specific citations to plaintiff's medical records, as well as attaching copies of some of the pertinent records and depo transcripts.

At the continued hearing, the court denied plaintiff's motion to continue and to submit supplemental papers, finding plaintiff's request was untimely and plaintiffs did not establish a proper basis for continuance pursuant to CCP Section 437c(h). It then took both motions for summary judgment under submission and subsequently granted both of them. Judgments were entered in favor of both defendants and plaintiffs appealed.

On appeal, plaintiffs contended that the trial court erred by refusing to consider the declarations of their expert, and that it misinterpreted the ruling in Garibay and "erroneously determined their expert declarations lacked evidentiary value." As to Dr. Warren's motion, the appellate court agreed and reversed. As for the Regents' motion, the court found the declaration was insufficient to raise a triable issue because it was conclusory, and affirmed.

The court analyzed Garibay in the context of reviewing the sufficiency of an opposing party's papers and expert declaration. It noted that Garibay involved a declaration by a moving party. The Garibay court had found the moving party's expert declaration was insufficient because the "expert had not demonstrated personal knowledge of the underlying facts" upon which his opinion was based and he had "attempted to testify to facts derived from medical and hospital records which were not properly before the court." Thus, the moving party in Garibay had not satisfied its burden so the motion for summary judgment should have been denied.

However, while noting that Dr. Ostergard's declaration "is not a model of specificity," the Shugart court found it was sufficient to raise a triable issue of fact as to whether Dr. Warren's care met the standard of care of the community and whether that care "caused or contributed to Christine's alleged damages." The court observed that since moving parties had attached authenticated copies of the medical records upon which Ostergard had relied in large part, "the foundational facts and medical records on which Dr. Ostergard relied as stated in his declaration were before the court to support his expert opinion. The Garibay case does not require a party opposing summary judgment to file duplicate copies of the medical records on which the opposing expert relied in forming a disputed expert opinion if they are already before the court in support of the motion." (Emphasis added.)

As for the Regents' motion, the court affirmed the summary judgment because while Ostergard's declaration in opposition had relied on medical records attached to the movant's papers, the expert's only statement impugning Dr. Kim (and thus, the Regents) was "wholly conclusory" and "insufficient to raise a triable issue. Nothing in Dr. Ostergard's declaration would assist in determining whether any act of Dr. Kim was performed below the standard of care or caused any injury to Christine. '[A]n expert's conclusory opinion that something did occur, when unaccompanied by a reasoned explanation illuminating how the expert employed his or her superior knowledge and training to connect the facts with the ultimate conclusion, does not assist the [factfinder.]'" (Citing Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, and Evidence Code section 801.)

The court also observed that much of Dr. Ostergard's declaration in opposition to the Regents' motion focused on Dr. Raz--someone who was not event named or implicated by the allegations in the complaint. Indeed, the only comments in the complaint that pertained to Dr. Raz were complementary! The court stated that the Regents were entitled to rely on the scope of plaintiff's operative pleading in seeking a summary judgment, and that plaintiff's "counterdeclarations are no substitute for amended pleadings." (Emphasis in original.)

The court has clearly stated that the requirements of an expert declaration set out in the Garibay decision will not apply to an opposition expert declaration where the operative records are part of the moving party's record on summary judgment. I think the court's statement that Dr. Ostergard's declaration was "not a model of specificity" is telling about the leniency opponents of summary judgments enjoy and the enormous burden moving parties bear. However, it was heartening to see the court rule that a conclusory counterdeclaration will not be sufficient to create a triable issue by implicating another party or theory of liability in lieu of an amended complaint.

1Dr. Kim, the individual physician employed by the Regents, had been dismissed by stipulation prior to the making of the motion because the Regents were the principal for her.