Sacramento Child Suffers Brain Injury During Birth, Part 10 of 13

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)

The Defendant’s Separate Statement Fails to Include Citations to Evidence that Support the Assertions

Another flaw of the defendant’s Separate Statement is the failure to include citations to evidence that support the assertions of fact. Material Fact 2 asserts that the defendant Lee initiated care of Ms. Jackson only once, at 5:22 p.m. As support, the defendant cites several lines on pages 63 through 65 of co-defendant Stein’s deposition.

Defendant Lee’s testimony, however, does not state the supposed Material Fact. That testimony merely states that it was her custom to tell the attending physician (co-defendant Stein) that if there was a call from a nurse about Ms. Jackson, it would have been her practice to notify the attending physician that she was going to see the patient and, later, to tell him what was happening with the patient. The cited testimony does not state or even insinuate that defendant Lee initiated care of Ms. Jackson only once at 5:22 p.m. In fact, defendant Lee admitted that she does not even remember getting a call from a nurse before 5:22 p.m.

The defendant also relies on her Exhibit E to prove that she entered Ms. Jackson’s room at 5:22 p.m., but that document has significant evidentiary flaws. There is no testimony regarding who wrote the notes or when they were written. For more information about this topic, please visit

The defendant includes as part of her counsel’s declaration several other documents, but the defendant’s Separate Statement cites none of them in support of the motion or the alleged material facts. In particular, the defendant includes pages 21, 24, 25, 34, 35, 43, 44, 52, 70-72 and 77 from the deposition of co-defendant Stein.

The defendant also includes pages 61, 62, 68 and 77 of her own deposition. Also, the defendant includes another unauthenticated document, Exhibit D, which her counsel asserts is a portion of a fetal heart strip.

The defendant includes none of these documents in her Separate Statement, leaving the plaintiff and the Court to speculate about how the testimony proves any of the defendant’s factual assertions. As just one example: The defendant includes page 21 of co-defendant Stein’s deposition testimony. A review of page 21 shows that he has known defendant Lee for over two years and that Dr. Sandra Gupta’s name appears throughout the medical chart. There is no explanation about how that testimony is relevant to any of the material facts recited in the Separate Statement. There is no explanation about which material fact the testimony should apply. If the length of the relationship between Stein and Lee is a material fact, it is not cited anywhere in the Separate Statement. Evidence that is simply included without reference to a material fact forces the parties to speculate about its relevance and application.

A party must strictly comply with the summary judgment statute if she seeks to avoid a jury trial. That statute requires specificity: Each material fact must be supported by specific admissible evidence. The opponent and the Court cannot be left to guess about how non-cited evidence might support one of those facts. Attaching pages of deposition testimony without anchoring them to the Separate Statement contradicts the strict requirements of the summary judgment statute and, in itself, warrants denial of the motion. (See Part 11 of 13.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Contact Information