Reasonable Medical Probability

Kline v. Zimmer, Inc., No. B302544 (D2d8 May 26, 2022)

This is an ancient medical device case where a plaintiff jury verdict was already reversed on an excessive damages issue. It still not over.

Plaintiff in a medical negligence or products liability case needs to prove that his injuries were caused by the allegedly defective act or instrumentality—here a defective hip transplant. To do that he needs to prove that the transplant caused his injury by “reasonable medical certainty.” For that, he needs an expert. And for that expert’s opinion to be admissible it must be expressed to a “reasonable medical probability.” That is really a way of saying that the plaintiff’s doc must be capable of saying that transplant more likely than not was the cause. Otherwise the testimony is inadequate to satisfy the burden of proof.

Plaintiff here did that. Defendant tried put up its own doc, who identified numerous other causes as “possible.” But he couldn’t testify that any particular one of them was the medically probable cause. The trial court held that wasn’t good enough and excluded the expert. Plaintiff won a big verdict.

That was error. The reason why has to do with the burden of proof. Plaintiff needs to prove, by 51/49, that the transplant was a proximate cause. So his expert needs to testify that the medical evidence could meet that test. But Defendant doesn’t bear any burden at all to prove something else was instead. Defendant just needs to stop Plaintiff from reaching 51%. And to do that, it does not require a defense expert to opine that any particular thing was the cause by a reasonable medical certainty. It is enough that Defendant’s expert offers sufficiently reliable testimony that throws doubt on the fact that Defendant’s conduct or product is the cause.

The Court draws an example from a 30 year old First Circuit case that makes it clear. Say the overwhelming scientific consensus is that a particular injury could be caused by A, B, C, or D, each with equal probability. Plaintiff finds an outlier expert who is willing to go all in on A. Testimony about the consensus would certainly be relevant to shoot down Plaintiff’s expert’s claim that A is a sufficient cause, even if nobody in that consensus could testify that something else was the cause by a reasonable medical certainty.

A trickier issue is that to get a reversal based on the exclusion of evidence, the appellant needs to show prejudice—a likelihood of a different result had the evidence been admitted. In this kind of context, that’s a real hard call to make as an epistemic matter. The Court of Appeal here declines to make that call. It instead finds that the error is “structural.” That is, that it fundamentally affected the process of the trial in such a substantial way that, yet, is not susceptible to measurement. The quintessential structural error is the denial of the right to jury trial. 

Exclusion of evidence usually doesn’t cut it for structural errer. But in a medical injury case, to deprive a defendant of any expert testimony at all on the crucial element of causation—an element that can only be proven with an expert—makes it across the line. Quoting a 2009 case, the Court explains that “when a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven, the error is reversible per se because it deprives the party offering the evidence of a fair hearing and of the opportunity to show actual prejudice.”

Reversed and remanded for a new trial on causation and damages.

Burdens and Standards on Administrative Writs

Li. v. Superior Court, No. C092584 (D3 Sept. 30, 2021)

Last year, in Conservatorship of O.B., the California Supreme Court cleared up some confusion regarding the way an underlying burden of proof affects the standard of review on appeal. Essentially, the court held that the standard of review bakes in the burden. So, for instance, when the substantial evidence standard applies, it will take more or better evidence to affirm a finding for a fact subject to a clear and convincing burden than it would for a fact that can be found by a preponderance.

This case applies that logic to administrative mandamus proceedings under Code of Civil Procedure § 1094.5. Administrative mandamus is a procedure that’s used to appeal the quasi-judicial decisions of administrative agencies to the superior court. In any administrative proceeding where the claimant is entitled to a hearing, the appeal is taken by § 1094.5 writ. The standard of review that applies to that appeal depends on the nature of the right affected. If the proceedings substantially affect a fundamental vested right, the record is reviewed de novo, and the statute directs the court to find an abuse of discretion if in its independent judgment, the agency’s findings are not supported by the weight of the evidence. If no fundamental right is involved, the superior court performs more of a traditional appellate role and reviews the findings for substantial evidence. 

The question, then, how the O.B. rule affects a superior court when the underlying burden in the administrative case is higher than a preponderance. The logic of O.B. pretty clearly applies to non-fundamental review that applies a substantial evidence standard. But for independent review, some older cases read the phrase “by the weight of the evidence” in § 1094.5(c) to require a preponderance burden even if the agency needed to make findings by clear and convincing. Particularly when combined with O.B., however, that leads to the odd result that the superior court winds up applying a more deferential standard of review in the independent review than it does on review for substantial evidence. That doesn’t make a lot of sense.

So the Court of Appeal here revisits those old cases. It does not find that they were implicitly overruled by O.B.—a probate appeal that had nothing to do with administrative mandamus. But regardless, the Court finds that the old cases mistakenly equated “weight of the evidence” with a preponderance and relied upon somewhat shaky somewhat out of context authority in doing so. In particular, there was a lot of conceptual conflation between burdens of proof and standards of review. With that underbrush cleared, there is no logical obstacle to applying an O.B.-style burden incorporation into the independent review standard.

Ironically, none of that affects the outcome of this case—the Medical Board of California’s revocation of petitioner’s physician’s license where the burden is clear and convincing and review is independent. The court finds that the petitioner failed to show that application of the correct standard would have altered the result in the superior court.

Writ denied.

RFAs Shift Fees When You Can't Win

Samsky v. State Farm Mut. Auto. Ins. Co., No. B293885 (D2d8 as modified Jul. 23, 2019)


If a party denies a request for admission but fails to prevail on the issue at trial, the propounding party is entitled to recover costs of proof under Code of Civil Procedure § 2033.420(a) unless an exception in § 2033.420(b) applies. Although the burdens aren’t expressly set out in the statute, the Court of Appeal here decides that the structure of the statute assigns the burden of proof of an exception to the party seeking to avoid fees by justifying its denial.

Here, Plaintiff asked an Insurer to admit, among other things, that a tortfeasor was negligent and a cause of his injuries. Insurer denied. But Plaintiff prevailed on the issue in an arbitration. When Plaintiff sought fees, however, the trial court found that Plaintiff had not shown the lack of a reasonable justification for the denial. That got the burden wrong. Insurer didn’t offer adequate evidence of its own to sustain its burden. That required it to come forward with credible, admissible evidence on which a contrary finding could have been sustained, such that Insurer had a reasonable belief that it would prevail at trial. So no exception was established. Plaintiff should have recovered his fees.

Reversed.