Sunday, February 19, 2017

Expert's MSJ Declaration Needs to Engage to Be Admissible.

Sanchez v. Kern Cnty. Med. Transp. Corp., No. F069843 (D5 Feb 2, 2017)

Plaintiff is a severely concussed high school footballer. He claims that the ambulance crew who transported him to the hospital were grossly negligent in taking too long, exacerbating his injuries. The Ambulance Company obtained summary judgment based on a lack of evidence that whatever additional time was taken was not a cause of any increase in the severity of his injuries.

Key to the grant of summary judgment was that the trial court sustained several objections to the declaration of Plaintiff’s medical expert. Evidentiary objections to summary judgment are often made, but infrequently ruled upon. But the court did so here. In doing so, it applies the same standard as it would were the expert testifying at trial.

Mostly, the objections were granted because the testimony was too conclusive and speculative. He did not specially apply the factual evidence to his analysis, did not explain how the relevant literature set out standards applicable to the facts of the case, and did not so much as review the (apparently much more detailed) medical expert evidence submitted with the Hospital Company’s motion. Indeed, the declaration essentially assumed facts that were unsupported by, or contrary to, evidence in the record about the historical events related to Plaintiff’s injury and transport.

Plaintiff claims, however, that an expert declaration in an MSJ opp doesn’t need to be as detailed as actual trial testimony. But the authorities he relies on did not entail expert declarations that made unsupported factual assumptions. Nor did they involve declarations from moving parties showing that, based on the current literature, the assumptions made by the expert were unsupported and speculative. When that happens, the opposing expert needs to come up with some actual analysis of the application of the standards relied on by the moving party’s expert. It needs to either show some dispute in the relevant literature or in the way it applies to the facts of the case. Conclusory opinions aren’t enough to create disputes when the moving party puts forth legit expert evidence that, if credited, would negate an element of the claim.

By “consider[ing] a significantly incomplete universe of information” Plaintiffs expert failed to render an opinion “based on matter ... that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” Evid. Code § 801(b). Thus the opinions were appropriately excluded. And in their absence, there were no disputed facts that merited denying summary judgment.


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