Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
UNIVERSAL’S EVIDENCE FAILS TO CARRY ITS BURDEN AS TO DIRECT LIABILITY
Universal relies upon the recitation of medical records in the declaration of Peter Fine, concluding with the opinion that the conduct described therein complies with the standard of care. As Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122, held, conclusory declarations without sufficient factual foundations are not sufficient to demonstrate the absence of a triable issue regarding standard of care.
In Kelley, the defendant physician submitted an expert declaration citing the records reviewed and then, after three paragraphs describing the records, announcing that At all times.. Dr. Trunk acted appropriately and within the standard of care under the circumstances presented. (Id. at 522) The Court of Appeal found that the declaration was inadmissible and failed to carry defendant’s burden on summary judgment.
Expert witnesses normally testify concerning the bases for their opinions, and the court may require the expert to state the bases before giving his opinion. (See Evid.Code, §§802.) Standard instructions give juries the common sense directive that [a]n opinion is only as good as the facts and reasons on which it is based.’ (BAJI 2.40.) An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. (Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58, 45 Cal.Rptr. 129,403 P.2d 385; Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847, 73 Cal.Rptr. 773 [expert opinions, though uncontradicted, are worth no more than the reasons and factual data upon which they are based]; BAJI 2.40 [ [Y]ou may not arbitrarily or unreasonably disregard the opinion testimony… which was not contradicted … unless you find that it is not believable… ].)
Applying the foregoing standards here, we conclude that summary judgment was improperly granted.
First, the Herndon declaration was not admissible, because it did not disclose the matter relied on in forming the opinion expressed. The required foundational showing that the opinion rests on matters of a type experts reasonably rely on is not made where, as here, the expert does not disclose what he relied on in forming his opinion. While the deficiency was waived by Kelley’s failure to object, we point it out for the benefit of other litigants confronting these issues.
Second, an opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. As the court observed in Griffith, supra, an expert opinion is worth no more than the reasons upon which it rests. Here, the crucial issues were: What was the nature of the disease or condition that required Kelley’s surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication?
Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley’s injury? Herndon’s declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks’ burden in moving for summary judgment. [Kelly v. Trunk, 66 Cal.App.4th 523-524] (See Part 10 of 12.)
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