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/personal injury case and its proceedings.)
The Ross declaration is equally week on the issue of causation. The defense expert asserts that the few minutes of delay in attempting a vacuum extraction did not cause George’s brain damage. The declaration fails to address the manifest question, though: If that did not cause the brain damage, then what did? Further, the defense expert fails to address the delay from 17:00 to 17:22. If this did not cause brain damage either, then what explanation does the defense expert offer? The defense expert’s declaration is silent about all of these questions. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.
As Kelley held, without illuminating explanation, [an expert’s declaration is] insufficient to carry [the defendant’s] burden in moving for summary judgment. Moreover, because the defendant’s supporting declaration is inadmissible to support summary judgment, the defendant failed to meet her threshold burden of persuasion. The burden of production thus never shifted to George, so the defendant’s motion for summary judgment should be denied even without considering the opposing evidence. C.C.P. § 437c(o)(2); FSR Brokerage, 35 Cal.App.4th at 73 n.4, 41 Cal.Rptr.2d at 407 n.4 (1995) (plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact).
The defendant may attempt to cure these deficiencies by having her expert submit a new or supplemental declaration. Again, however, any such declaration should be rejected as untimely.
All supporting papers must be served and filed with the motion for summary judgment. The testimony must be included in the defendant’s Separate Statement, or it does not exist. United Community Church, 231 Cal.App.3d at 337, 282 Cal.Rptr. at 376. The plaintiff objects to new or supplemental expert evidence offered for the first time in the defendant’s reply, on the basis that it is untimely. (See Part 13 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.