Liu v. Superior Court
Filed 5/9/13 Liu v. Superior Court CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION FIVE
MARION LIU, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO AUGUSTINE
LIU et al.,
Petitioner,
v.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES,
Respondent;
JANSSEN RESEARCH & DEVELOPMENT, LLC, etc. et al.,
Real Parties In Interest.
B246461
(Los Angeles County
Super. Ct. No. BC432264)
ORDER MODIFYING OPINION
AND DENYING PETITION FOR
REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed
herein on April 19, 2013, be
list of counsel.
Drinker
Biddle & Reath, Alan J. Lazarus and John J. Powers for Real Parties in
Interest Janssen Pharmaceuticals, Inc. and Janssen Research & Development,
LLC.
Carroll, Kelly, Trotter, Franzen & McKenna, Sandra J.
Carlson and John C. Kelly for Real Party in Interest Clinical Pharmacological
Studies, Inc.
In the disposition paragraph on page
17, the paragraph is modified to read as follows:
The petition
is granted as to plaintiff’s causes of action for negligence only and a
preemptory writ of mandate hereby issues directing the respondent trial court
to vacate that portion of its order of January 11, 2013, granting summary
judgment as to plaintiff’s cause of action for negligence only (not as to the
dismissed claim for dependent adult abuse) against defendants Dr. Valencerina,
Lau and CPS and enter a new and different order denying defendants’ motion for
summary judgment as to plaintiff’s cause of action for negligence against Dr.
Valencerina, Lau and CPS; and to vacate that portion of its January 9, 2013
order granting summary judgment as to plaintiff’s cause of action for
negligence only (but not as to the dismissed claims for strict product
liability for failure to warn and negligent failure to warn) against Janssen,
and enter a new and different order denying defendants’ motion for summary
judgment as to plaintiff’s cause of action for negligence against Janssen. The petition is otherwise denied. Plaintiff shall recover her costs.
Petition for Rehearing is denied.
No change in judgment.
MOSK, Acting P. J. O’NEILL,
J.
Filed
4/19/13 Liu v.
Superior Court CA2/5 (unmodified
version)
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION FIVE
MARION LIU, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO AUGUSTINE
LIU et al.,
Petitioner,
v.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES,
Respondent;
JANSSEN RESEARCH & DEVELOPMENT, LLC, etc. et al.,
Real Parties In
Interest.
B246461
(Los Angeles County
Super. Ct. No. BC432264)
ORIGINAL
PROCEEDINGS; Petition for Writ of Mandate to Challenge an order of the Superior
Court of Los Angeles County, Elizabeth Allen White, Judge. Petition Granted in Part.
Farrise Firm, Simona A. Farrise; The
Arkin Law Firm and Sharon J. Arkin for Petitioner.
No appearance for Respondent.
Bonne, Bridges, Mueller, O’Keefe
& Nichols, David J. O’Keefe, William R. Johnson, and Vangi M. Johnson for
Real Party in Interest Madeleine Valencerina.
INTRODUCTION
In a case involving allegations of
medical negligence, plaintiff and petitioner, the mother of decedent,
petitioned for a writ of mandate to set aside a summary judgment granted by
respondent trial court because, according to the trial court, the defendants,
real parties in interest, had submitted sufficient evidence of lack of
causation and therefore non liability and plaintiff had failed to submit
sufficient evidence that any negligence by the defendants proximately caused
the death of decedent. The trial court
determined that the declaration of plaintiff’s expert did not contain a
sufficient explanation for his opinion as to proximate cause and therefore was
not admissible nor sufficient.
We hold that although defendants
submitted admissible evidence as to lack proximate cause, the expert for
plaintiff did submit sufficient, admissible evidence of negligence and
proximate cause to establish a triable issue of fact. We therefore reverse the summary judgment as
to certain negligence causes of action against the real parties in interest.
BACKGROUND
A. Facts
Marion Liu (plaintiff) originally
brought the action with her husband a successor in interest to the estate of
her son, Augustine Liu II (Liu). During
the proceedings her husband died, and she was substituted in as his successor
in interest.
Liu suffered from schizophrenia. He also used marijuana and alcohol while on
other medications. Defendant Dr.
Madeleine Valencerina (Dr. Valencerina) is a psychiatrist and employee of Kedrens Mental Health Center. She was also a part owner of defendant
Clinical Pharmacological Studies, Inc. (CPS).
Through CPS, Dr. Valencerina conducted clinical drug studies as a
principal investigator. Dr. Valencerina
recruited Liu for participation in a drug study of a new formulation of the
anti-psychotic drug, Risperidone (used to treat schizophrenia), by defendant
Janssen Research and Development, LLC,
On February
19, 2009, Liu signed documentation provided by Dr. Valencerina purporting to be
an informed consent. On that date an
Electrocardiogram (EKG or ECG)
name="_ftnref3" title="">[3]
was performed, which the result described as “abnormal†with “sinus
tachycardia; old myocardial infarction,†and noted “non-specific T wave
abnormalities possibly secondary to heart disease†and “presents an alert.†Blood was drawn that indicated Liu’s liver
enzymes were high. Dr. Valencerina
nevertheless concluded Liu was “asymptomatic†based on her discussions with
him, in which he denied any family history of cardiac or cardiovascular
problems, and she admitted him to the study.
On February 22, 2009, Liu entered
defendant College Hospital, Inc., dba College Hospital Cerritos (College
Hospital) (not a real party in this proceeding) as a study subject. On February 23, 2009, another blood draw was
taken at 7:15 a.m. that demonstrated that Liu’s liver enzyme tests were
abnormally high and increasingly so. One
half hour after the blood draw was taken, a one milligram dose of Risperidone
(the experimental anti-psychotic drug used to treat schizophrenia) was injected
into Liu’s gluteus muscle. About two
hours after the Risperidone was administered, another ECG was conducted. The ECG report showed that the cardiac
condition was worsening, stating in part:
“Junctional tachycardia; right ventricular hypertrophy without secondary
ST-T changes; an old myocardial infarction; . . . nonspecific T-wave
abnormalities, possibly secondary to heart disease.â€
On February 25, 2009, another blood
draw was taken at 12:05 p.m., which blood test demonstrated that Liu’s AST and
ALT (liver enzymes) measurements were increasing significantly. Liu was transferred from College Hospital to
an acute-care hospital, Coast Plaza, at 8:15 p.m. on that date. Liu died 17 hours later, at 1:29 p.m. on
February 26, 2009. There was evidence
that Liu’s death was the result of the cardiomyopathy in conjunction with other
factors (co-morbidities), including multiple organ injury or failure,
thrombocylopenia, and pneumonia.
PROCEDURAL
BACKGROUND
Plaintiff sued defendants Janssen,
Dr. Valencerina, Dr. Kei-Chen-Lau (Lau) and CPS, who are the real parties in
interest, and defendants College Hospital and Dr. Robert Collen (Collen). Plaintiff’s fourth amended complaint included
the following causes of action relevant to this proceeding: First Cause of action for dependent adult
abuse against Dr. Valencerina under Welfare and Institutions Code section
15610.07 et seq.; second cause of action for negligence against Dr.
Valencerina, Lau and Collen, CPS, Janssen and College Hospital; fourth cause of
action for products liability for failure to warn against Janssen; and fifth
cause of action for negligent failure to warn against Janssen. Other causes of action and defendants were
dismissed.
doing the acts alleged, acted as agents of each of the other named
defendants. Defendants did not raise
lack of agency in their summary judgment motions.
The defendants filed motions for
summary judgment and summary adjudication.
The respondent trial court (trial court) overruled objections to
declarations submitted by defendants and sustained objections to portions of
the expert’s declarations submitted by plaintiff. The trial court denied the summary judgment
motions as to defendants Collen and College Hospital, but granted them as to
defendants Dr. Valencerina, Lau, CPS, and Janssen—the real parties in interest.
In the petition for writ of mandate,
plaintiff seeks to have the trial court vacate its summary judgment as to the
real parties in interest. This court
granted an alternative writ of mandate directing the trial court to vacate that
portion of its order granting summary judgment as to plaintiff’s cause for
negligence only (not as to the dismissed claims for dependent adult abuse,
strict product liability for failure to warn and negligent failure to warn)
against defendants Dr. Valencerina, Lau, CPS, and Janssen and to enter a new
order denying the motions or to show cause why not. Following a hearing pursuant to
Superior Court (2010) 47 Cal.4th 1233, 1250, fn. 10, the trial court
ultimately determined not to set aside its order granting the summary judgment,
thereby declining to comply with the alternative writ, and thus, respondent
trial court was required to show cause before this court why a peremptory writ
should not issue.
of Review
Our review of the trial
court’s rulings on the summary judgment motions is governed by the well
established principles. ‘“‘“A trial court properly grants a motion for
summary judgment only if no issues of triable fact appear and the moving party
is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c); see also id., § 437c, subd. (f) [summary adjudication of issues].) The moving party bears the burden of showing
the court that the plaintiff ‘has not established, and cannot reasonably expect
to establish,’†the elements of his or her cause of action. (Miller
v. Department of Corrections (2005)
36 Cal.4th 446, 460 [30 Cal.Rptr.3d 797, 115 P.3d 77].)’ (Wilson
v. 21st Century Ins. Co. (2007)
42 Cal.4th 713, 720 [68 Cal.Rptr.3d 746, 171 P.3d 1082].) We review the trial court’s decision de novo,
liberally construing the evidence in support of the party opposing summary
judgment and resolving doubts concerning the evidence in favor of that
party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32
Cal.Rptr.3d 436, 116 P.3d 1123].)†(
(2009) 45 Cal.4th 1008, 1017-1018.)
“[W]e must construe plaintiff’s evidence liberally and accept all
reasonable inferences which could be drawn by a trier of fact in favor of
plaintiff.†(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 854.)
“We review the trial court’s
decision [on a summary judgment motion] de novo, considering all of the
evidence the parties offered in connection with the motion (except that which
the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports. (
Cal.4th 604, 612 [76 Cal.Rptr.2d 479, 957 P.2d 1313].) In the trial court, once a moving defendant
has ‘shown that one or more elements of the cause of action, even if not
separately pleaded, cannot be established,’ the burden shifts to the plaintiff
to show the existence of a triable issue; to meet that burden, the plaintiff
‘may not rely upon the mere allegations or denials of its pleadings . . . but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’ (Code Civ. Proc., § 437c, subd. (o)(2); see
25 Cal.4th 826, 854-855 [107 Cal.Rptr.2d 841, 24 P.3d 493] (
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
Summary judgment is a drastic
measure that deprives the losing party of a trial on the merits. [Citation].
It should therefore be used with caution, so that it does not become a
substitute for trial. [Citation.] The affidavits of the moving party should be
strictly construed, and those of the opponent liberally construed. [Citation.]
Any doubts as to the propriety of
granting the motion should be resolved in favor of the party opposing
the motion. [Citation.]†(Molko
v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107,
superseded by statute on other grounds as stated in Aguilar, supra, 25 Cal.4th at p. 853, fn. 19.)
B. Defendants Have Met Their Burden
As noted, a defendant meets its
burden in a summary judgment motion that a cause of action has no merit by showing
that “one or more elements of the cause of action . . . cannot be established,
or that there is a complete defense to that cause of action.†(Code Civ. Proc., § 437c, subd.
(p)(2).) Then the “burden shifts to the
plaintiff . . . to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.†(Ibid.) In a professional malpractice action, expert
opinion is required to prove or disprove that the defendant performed in
accordance with the prevailing standard of care; except when the alleged
negligence would be obvious to a layman.
(Kelley v. Trunk (1998) 66
Cal.App.4th 519, 523.) Plaintiff asserts
that the expert declarations submitted by defendants were not sufficient to
shift the burden.
Defendants filed with their motions
for summary judgment, declarations of doctors Michael B. Fowler and C. Alan
Brown containing their expert opinions that provide, in essence, the
following: The one milligram dose of
Risperidone was not a substantial contributing factor in causing Liu’s liver
failure nor did it exacerbate an already deteriorating cardiac condition; Liu
had liver congestion caused by his preexisting heart failure associated with
dilated cardiomyopathy; Liu had long-standing heart disease that was unrelated
to his participation in the drug test; Liu’s heart disease was so extensive and
longstanding that there was no available treatment, other than a transplant,
and he did not meet the standards for such a procedure because of his abuse of
alcohol and drugs and his mental illness; to a reasonable medical probability,
Liu’s death was unavoidable and could not have been prevented even if he had
been excluded from the study; there was nothing that could have been done
between February 20, 2009 and February 25, 2009 that would have prevented Liu’s
death; Liu’s death was not caused by any act or omission of real parties in
interest.
Plaintiff has asserted that had the
trial court applied the correct standards, it should have excluded defendants’
declarations as not providing a reasonable explanation for the
conclusions. Those declarations specify
Liu’s conditions—cardiomyopathy, enlarged heart, low rejection factor—but do
not state why emergency care procedures would not have prolonged Liu’s
life. Plaintiff asserts that she never
contended that Risperidone caused Liu’s cardiomyopathy—but rather contributed
to his heart failure, liver failure and death, and that the experts did not
address this issue. She also argues that
the experts do not discuss the possible treatments, why the liver enzymes
reading increased so rapidly after the Risperidone injection, and exactly why
Liu’s death was inevitable within a week.
She also points out that she does not say the participation in the study
per se caused or contributed to Liu’s death; rather it was the decision to
admit him to the study rather than to refer him immediately for a cardiac
workup after the initial ECG and blood test results demonstrated the existence
of serious cardiac problems and elevated liver enzymes; and why Liu’s
deteriorating condition was ignored.
Plaintiff contends that the trial court correctly rejected the expert’s
declarations in denying the motions by Collen and College Hospital and
therefore should have applied the same standard to reject the declarations
submitted by defendants (real parties in interest).
A person who qualifies as an expert
may give opinion testimony if the subject matter of the opinion “is
sufficiently beyond common experience that the opinion of [the] expert would
assist the trial of fact.†(Evid. Code,
§ 801, subd. (a); see People v.
Gardeley (1996) 14 Cal.4th 605, 617-618.)
A qualified medical expert’s testimony is required to prove or disprove
that a defendant performed in accordance with the applicable standard of
care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) And the medical expert may testify on issues
of causation. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108, 1117 (Palomar).) Expert testimony may be excluded if based on
assumptions without supporting evidence, or on speculation or conjecture, or
when the opinion is purely conclusory without a reasoned explanation. (Id. at
pp. 1117-1118.)
There is no dispute over the
qualification of Doctors Brown and Fowler.
Moreover, both doctors stated that they had reviewed all the relevant
documentation. Dr. Brown essentially
opined that nothing Dr. Valencerina did or did not do constituted a substantial
factor in causing Liu’s death. Dr. Brown
explained this conclusion by explaining Liu’s conditions that made his death
unavoidable, and that nothing could have been done between February 20, 2009
and February 25, 2009 to prevent Liu’s death.
He also opined that based on Liu’s preexisting condition, neither the
study nor the Risperidone contributed to Liu’s death.
Dr. Fowler came to the same
conclusion as Dr. Brown, based on Dr. Fowler’s assessment of Liu’s
condition. He noted that after the
Risperidone injection, Liu’s vital signs remained stable, and the autopsy
indicated that Risperidone in Liu’s system was not detected. He also said that based on Liu’s condition,
albeit abnormal, emergency treatment was not necessary and would not have
prevented death in any event. It should
be noted that Dr. Fowler said that “it would be entirely speculative to assume
that any treatment could have any affect [sic]
in preventing [Liu’s] death.†He did
later say that he did not “believe that any treatments could have been
instituted that, to a reasonable degree of medical probability, would have
prevented Mr. Liu’s death on February 26, 2009.â€
It may be that there could have been
further explanation of the conclusions, but we believe that the trial court
properly admitted both of these expert declarations submitted by defendants as
satisfying the requirements for admission and were sufficient to shift the
burden to plaintiff to show a triable issue of fact on causation. Both expert opinions are based on facts with
evidentiary support. Both experts
provide some reasoned explanation with facts that supports the
conclusions. And neither expert opinion
is based on pure speculation or conjecture.
Thus, the burden properly shifted to plaintiff to supply sufficient
evidence to establish triable issues of fact on causation.
C. Plaintiff Has Established Triable Issues
of Fact
Plaintiff submitted the declarations of Doctors Jay N.
Schapira, a cardiologist, and James O. Donnell, a pharmacologist. Just as defendants’ experts, these experts
have unchallenged qualifications and have reviewed all the relevant
documentation. Dr. Schapira stated that
the medical records reflect sufficient cardiac and liver abnormalities such
that further testing or referral to a cardiac specialist should have been
undertaken and that the failure to do so by Dr. Valencerina constituted a
breach of the standard of care.
Moreover, he opined that based on the medical records, admitting to a
study a person in Liu’s condition without further testing and treatment also
constituted a breach of standard of care.
The failure to transfer Liu to an acute care hospital after the February
23, 2009, blood draw and instead just ordering a repeat test was reckless and
constituted a breach of the standard of care.
Dr. O’Donnell came to the same
conclusions as Dr. Schapira and added that the injection of Risperidone was a
substantial factor in causing Liu’s liver failure and that defendants, by
admitting Liu to the study, breached the “appropriate standard of care as
clinical investigators and sponsors of an investigational drug-study.â€
By these expert opinions, plaintiff
has established a triable issue of fact as to the issue of negligence. The trial court did not dispute this
conclusion. Rather the trial court
concluded that as a matter of law, plaintiff could not prevail because her
experts’ opinions on causation were insufficient.
Dr. Schapira, after concluding that
it was a breach of the standard of care not to transfer Liu for tests and
treatment on an emergency basis, opined, “It is my opinion to a reasonable degree
of medical certainty and based on my experience, training and education, that
had an emergency transfer to an acute care hospital been made in the face of
the February 23 liver function tests, there is a better than 50% chance that
decedent could have been successfully treated and would have survived.â€
Defendants argued and the trial
court agreed that the declaration of Dr. Schapira did not contain a reasoned
explanation as to what treatment at an acute care hospital after the liver
function test showed increasingly elevated liver enzymes would have given Liu a
better than 50 percent chance of avoiding death from dilated cardiomyopathy,
which defendants’ expert Dr. Fowler indicated was not treatable and could not
have been avoided as Liu was not a heart transplant candidate. Thus, the trial court determined that
plaintiff had failed to raise a triable issue of fact on causation. The trial court also did not admit the expert
evidence that Risperidone was a substantial factor in Liu’s death.
The trial court erred in rejecting
Dr. Schapira’s opinion on causation, whether we review that decision based on
the abuse of discretion or de novo standards.
(See Reid v. Google, Inc. (2010)
50 Cal.4th 512, 535; Howard
Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1114.) The Supreme Court has stated courts may infer
conclusions from the factual statements of experts in medical practice cases
and that “it was error for the trial court to reject his declaration on the
grounds that it was conclusory.†(
37.)
In Powell v.
Kleinman (2007) 151 Cal.App.4th 112, the court reversed a summary judgment
in favor of a defendant doctor in a malpractice case because the trial court
erroneously excluded evidence from the declaration of plaintiff’s expert
opposing summary judgment. In doing so,
the court stated that while a defendant’s expert declaration has to be detailed
in order to obtain a summary judgment, a plaintiff’s declaration in opposition
to a summary judgment does not “have to be detailed [and, is] entitled to all
favorable inferences . . . .†(
construe the declarations of the plaintiff’s experts and resolve any doubt as
to the propriety of granting the motion in favor of the plaintiff.†(Ibid.) In that case, the expert for the plaintiff
“opined that it is medically probable [that defendant’s] care and treatment
caused [plaintiff] injury.†(
expert’s] declaration may appear, as a party opposing summary judgment,
[plaintiff] is entitled to all favorable
inferences that reasonably may be derived from it, which includes a reading
of the declaration to state that [plaintiff’s] injuries were caused by
[defendant’s] conduct, which conduct fell below the applicable standard of
care.†(Ibid.)
Likewise, in Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-608, the court in
reversing a summary judgment in favor of defendant doctor, held that
plaintiff’s expert declaration was sufficient.
The court stated, “Defendants fare no better on the element of
causation. [The expert] states that
[plaintiff] suffered nerve damage during the surgery and that the care
defendants provided was a cause of his injuries. Although the style of the [expert]
declaration is at times a bit obtuse, [plaintiff] is entitled to all favorable
inferences that may reasonably be derived from that declaration. These inferences include a reading of the declaration
to state that the nerve damage [plaintiff] suffered during surgery was caused
by the conduct of defendants, which conduct fell below the applicable standard
of care. Nothing more was needed.†(Id. at
pp. 607-608.) The court added, “The
recent case of Kelley v. Trunk (1998)
66 Cal.App.4th 519 [78 Cal.Rptr.2d 122] suggests that even on summary judgment,
an expert’s declaration must set forth in excruciating detail the factual basis for the opinions
stated therein. We find this approach,
under which all of the expert declarations in the same case would have to be
deemed inadequate, to be unsupported.
Accordingly, we decline to utilize it.â€
(Id. at p. 608, fn. 6.) We agree with the court’s position in
moving-party declaration in any event.
In Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173 (
the supplier of a prosthetic bone for product liability. The court reversed a summary judgment in
favor of the defendant. The defendant had
argued that the declaration of plaintiff’s expert was not admissible because it
lacked a reasoned analysis of the conclusion because, in part, the expert did
not describe the testing methods employed.
The court acknowledged the court’s “gate-keeping†function for expert
testimony enunciated by the Supreme Court in Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 781. The court said, “Unlike Sargon, supra, 55 Cal.4th 747, this
case involves the exclusion of expert testimony presented in opposition to a
summary judgment motion. The trial court
here did not conduct an evidentiary hearing, and there was no examination of an
expert witness pursuant to Evidence Code section 802. Absent more specific information on the testing
methods used and the results obtained, the trial court here could not
scrutinize the reasons for Kashar’s opinion to the same
extent as did the trial court in Sargon. We do not believe, however,
that the absence of such detailed information justified the exclusion of [the
expert’s] testimony. [¶] The
rule that a trial court must liberally construe the evidence submitted in
opposition to a summary judgment motion applies in ruling on both the
admissibility of expert testimony and its sufficiency to create a triable issue
of fact. [Citations.] In light of the rule of liberal construction,
a reasoned explanation required in an expert declaration filed in opposition to
a summary judgment motion need not be as detailed or extensive as that
required in expert testimony presented in support of a summary judgment motion
or at trial. [Citations.] Liberally construing the [expert’s]
declaration, we conclude that the explanation provided for [the expert’s]
opinion was sufficient and that the trial court could not properly exclude the
expert testimony based on [the expert’s] failure to identify the particular
tests employed or describe the test results.
[¶] We therefore hold that the
trial court failed to liberally construe the declaration as required, and that
the sustaining of the objections to the [the expert’s] declaration based on
Evidence Code sections 801, subdivision (b) and 802 was an abuse of
discretion.†(Garrett, supra, 214 Cal.App.4th at pp. 189-190.)
Defendants assert that these cases are either
inconsistent with other cases or are factually different than the instant
case. We believe the principles
enumerated in these cases are applicable here.
There are cases arising out of
summary judgment that seem to apply the same evidentiary standards of
admissibility to the experts of the party opposing summary judgment as to the
experts of the party making the summary judgment motion. In Bushling
v. Fremont Medical Center (2004) 117 Cal.App.4th 493, the court stated,
that the “injury occurred ‘more probably than not’ from the events they list in
their declaration [is a] conclusion [that] is no more than speculation if there
is no factual basis for those events [and therefore] of no evidentiary value on
the question of negligence or causation.â€
The dissent points out that according to the rule of
Cal.3d at page 1107, declarations in opposition to a summary judgment motion
are treated differently than those supporting the motion and the expert
declarations in question were sufficiently detailed. (Bushling
v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 511;
Sims, J.).)
In Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761, the court
in affirming a trial court’s sustaining of objections to an expert’s
declaration said the “same rules of evidence that apply at trial also apply to
the declarations submitted in support of and in opposition to motions for
summary judgment.†But as noted in
189 to 190, there is a distinction because of the difference in the treatment
of declarations of opposing and supporting parties.
In Palomar, supra, 114 Cal.App.4th at pages 1119-1120, the court held
in that case that the trial court properly struck the testimony of an expert
witness concerning causation because the opinion was “too conclusionary†and
lacked a “reasoned explanation.†There,
the expert opined that the surgical retractor could have provided a medium for
bacteria to grow inside plaintiff and that the “bacteria growing around the
retractor were a cause-in-fact of the infection.†(Id. at
p. 1119.) This case involves trial
testimony. Thus, the court did not
employ the inferences to a declaration submitted by an expert opposing summary
judgment. To the extent these and other
cases cited by defendants may be inconsistent with the cases we rely upon, we
elect to follow the reasoning in the cases upon which we rely for the reason
stated in those cases. In our view, that
reasoning is consistent with the standards and principles applicable to summary
judgments.
This case arises on summary judgment. Moreover, Dr. Schapira not only concluded
that it was more probable than not that had Liu timely been transferred on an
emergency basis to an acute care hospital because of his condition, he could
have been successfully treated and would have survived. He also spelled out that the failure to
transfer, test, assess and, treat Liu on the basis of the February 19th or
February 23rd tests was reckless and constituted a breach of the standard of
care. Inferable from this opinion is
that had the acts or omissions not been reckless, Liu could have been
treated. There would have been no point
in the emergency care unless there were treatments available to have saved
Liu’s life. Schapira should not be
required to set forth the precise treatments available at this stage. That might be a basis for cross-examination
at trial.
Even if the evidence regarding Risperidone should have
been excluded as to causation, drawing the necessary inference in the light
most favorable to the opposing party (Aguilar,
supra, 25 Cal.4th at pp. 844-845), the improper care afforded Liu was
sufficient to support the causation conclusion, if such support is
necessary. The expert’s opinion on
causation should not have been omitted or deemed insufficient at this stage.
establish a triable issue of fact on causation.
Accordingly, the summary judgment in favor of defendants on negligence
should be vacated.
D. Agency
Plaintiff alleged that each of the
defendants was the agent of the other.
Defendant Janssen has not contested plaintiff’s argument that Dr.
Valencerina was acting as its agent.
Plaintiff also argues that since the trial court denied the summary
judgments as to defendants Collen and College Hospital, the remaining
defendants are vicariously liable. The
issue was not raised until plaintiff’s reply to the returns. In view of our conclusion, we need not reach
this issue.
E. Other Causes of Action
In its petition, plaintiff also
asserted that the trial court’s summary determination on the Elder Abuse and
Dependent Adult Civil Protection Act (Welf. & Inst. Code, §§ 15600 et
seq.) claims constituted error. After
the alternative writ was issued suggesting that the trial court’s determination
on that issue not be set aside, plaintiff has not reargued that
contention. This court denied the
petition concerning the claims for dependent adult abuse, as well as claims for
strict product liability for failure to warn and negligent failure to warn.
The
preemptory writ of mandate is issued directing the respondent trial court to
vacate that portion of its order of January 11, 2013, granting summary judgment
as to plaintiff’s cause of action for negligence only (not as to the dismissed
claim for dependent adult abuse) against defendants Dr. Valencerina, Lau and
CPS and enter a new and different order denying defendants’ motion for summary
judgment as to plaintiff’s cause of action for negligence against Dr.
Valencerina, Lau and CPS; and to vacate that portion of its January 9, 2013
order granting summary judgment as to plaintiff’s cause of action for
negligence only (but not as to the dismissed claims for strict product
liability for failure to warn and negligent failure to warn) against Janssen,
and enter a new and different order denying defendants’ motion for summary
judgment as to plaintiff’s cause of action for negligence against Janssen. Plaintiff shall recover her costs.
MOSK,
Acting P. J.
I concur:
O’NEILL, J.
KRIEGLER,
J., Dissenting.
I respectfully dissent. The declaration of plaintiff’s expert, Dr.
Jay Schapira, speculates that Augustine Liu, III, had a better than 50 percent
chance of being successfully treated and surviving had he been transferred on
an emergency basis to an acute care hospital on February 23, 2009. Dr. Schapira provided no explanation for how
someone with Liu’s medical issues might have been treated and survived. The trial court was left to speculate as to
how survival might have occurred in this circumstance—whether from medication,
surgery, or divine intervention. The
declaration is insufficient as a matter of law to demonstrate a triable issue
of material fact which defeats summary judgment. (Bozzi
v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.) I would deny the petition for writ of
mandate.
KRIEGLER, J.
name="_ftn1" title="">[1] We
state the facts in accordance with the standard of review discussed
Research and Development, LLC was formerly known and sued as Johnson &
Johnson Pharmaceutical Research & Development, LLC. Also named are Janssen Pharmaceuticals, Inc.
formerly known as Ortho-McNeil-Janssen Pharmaceuticals, Inc. These defendants are collectively referred to
as “Janssen.â€
