The Epistemology of Admitted Evidence

Doe v. Good Samaritan Hosp., No. F073934 (D5 May 21, 2018)

An appeal of a defense judgment in a med-mal case. Defendant put in a very conclusory expert declaration that the hospital met the standard of care. Plaintiff didn’t submit anything in contradiction. But he did argue, in the trial court and now on appeal, that the declaration wasn’t sufficient to meet the Hospital’s affirmative burden on summary judgment. The trial court disagreed. But the Court of Appeal reverses, holding that a bare-bones conclusory expert declaration on the standard of care, that doesn’t explain its reasoning, even if admitted into evidence, isn’t sufficient to meet a moving party’s SJ burden.

Reversed.

I’m not sure this is the right approach conceptually. It seems like this should be more of question of evidence than of summary judgment procedure.

Experts state opinions. In doing so, they are supposed to substantiate them, both as a matter of credibility, and perhaps more importantly, as a threshold requirement to having them admitted into evidence. They need to show their work.

But that stuff is basically a foundational predicate to admissibility. Evidence Code § 801 sets out some preliminary facts that must be established under Evidence Code §§ 403 and 405 before an expert opinion is admissible in evidence. See generally People v. Cottone, 57 Cal.4th 269, 284 (2013). The absence of that foundation is a waiveable objection. Web Serv. Co. v. L.A. Cty., 242 Cal.App.2d 1, 8 (1966). So it seems like, if nobody objects, “it is my opinion that x satisfies the standard of care,” is prima facie evidence that X does indeed the standard of care. Because if that statement isn’t actually probative of what it says, it shouldn’t be in evidence in the first place. Evid. Code §§ 210 (relevant evidence has “a tendency in reason to prove or disprove any disputed fact . . . of consequence . . . . ”); 350 (“No evidence is admissible except relevant evidence.”).

Plaintiff here apparently made an evidentiary objection, but the court never ruled on it. On appeal, he chose to raise the burdens issue and abandon the evidence question. (Perhaps that is because the burden issue is subject to more appellant friendly standard of review.) It was apparently a correct call tactically. Because even if I don’t think it really makes conceptual sense, there’s precedent that supports the “conculsory expert declaration doesn’t move the needle on summary judgment” approach taken by Plaintiff and the court here.