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Recent decision on “inferring” causation from a plaintiff’s
expert declaration in opposition to a motion for summary judgment
(September 7, 2007) |
In Powell v. Kleinman (2007) 07 C.D.O.S. 5837, the Court of Appeal,
Fifth Appellate District, held that in reviewing the sufficiency of
a plaintiff’s expert’s declaration in opposition to a motion for
summary judgment, the court must liberally construe the statements
made and opinions expressed by plaintiff’s expert and make “all
favorable inferences” for the plaintiff. This is true even of an
essential element like causation. On the other hand, a declaration
by a moving party’s expert must be strictly construed. In the
opinion of the court, this is consistent with the “well-settled rule
of evidence” that all evidence must be construed “in the light most
favorable to the opposing party.”
Plaintiff Powell brought a motion for summary judgment against Dr.
Kleinman and others for medical malpractice. He claimed the
defendants neither properly nor timely diagnosed nor treated a
spinal cord injury, and such negligent treatment caused him injury.
Dr. Kleinman moved for summary judgment. The trial court granted the
motion for summary judgment after sustaining Kleinman’s objections
to plaintiff’s expert’s declaration in opposition to the motion.
Plaintiff appealed on the ground that his expert declaration did
raise triable issues of fact, was improperly excluded and as a
result the motion was improperly granted. The court of appeal agreed
with plaintiff and reversed.
In so holding, the court discussed the evidentiary hurdles a
defendant must jump to support a motion for summary judgment, and
what a plaintiff must do in opposition to establish there is a
triable issue that should go to a jury. The court went through a
detailed discussion about the sufficiency of expert declarations
both in support of and in opposition to a summary judgment motion.
“When a defendant moves for summary judgment and supports his motion
with expert declarations that his conduct fell within the community
standard of care, he is entitled to summary judgment unless the
plaintiff comes forward with conflicting expert advice.” The court
explained “An expert’s opinion, however, ‘may not be based on
assumptions of fact that are without evidentiary support or based on
the factors that are speculative or conjectural….[A]n expert’s
opinion rendered without a reasoned explanation of why the
underlying facts lead to the ultimate conclusion has no evidentiary
value because an expert opinion is worth no more than the reasons
and facts on which it is based.” However, “simply because the
defendant doctor provides an unopposed declaration by an expert does
not necessarily mean the court should grant summary judgment.”
The court distinguished the degree of specificity and detail that is
required of a declaration by the defendant’s expert in support of a
motion for summary judgment, from that of a plaintiff’s expert in
opposition to such a motion. “We conclude that both the Kelley and
Hanson courts properly applied the rule that, when considering the
declarations of the parties’ experts, we liberally construe the
declarations for the plaintiff’s experts and resolve any doubts as
to the propriety of granting the motion in favor of the plaintiff.
(Cite omitted.) Accordingly, we apply this well-settled rule of
evidence when considering Powell’s declaration.”
Here, when the plaintiff’s expert’s declaration was given “all
favorable inferences,” the court found it contained a viable
explanation about causation as well as raised at least two questions
of fact about possible deviations from the standard of care by
defendant. The court at one point even said it was reasonable to
“infer” from plaintiff’s expert’s declaration that “but for”
defendant’s failure to ascertain the results of the MRI or to
determine treatment that was rendered by a co-defendant, “the
causative factor of the delay in diagnosing and treating Powell’s
condition would not have occurred. Nothing more was needed to raise
a triable issue of material fact as to whether Dr. Kleinman, through
the delay, caused Powell’s injuries.” The court has thus condoned
“inferring” what an expert means in his or her declaration in
opposition to a MSJ—including an ultimate opinion on
causation—because it is consistent with giving “all favorable
inferences” to the plaintiff under “the principle of liberal
interpretation of evidence offered in opposition to summary
judgment.”
So, with this decision the court has made clear that a defendant
moving for summary judgment must have a detailed expert declaration
based on clearly articulated facts and conclusions that also sets
forth the basis of each opinion, while a plaintiff’s expert
declaration apparently does not require such specificity. Indeed, it
appears the court wants trial courts to be at liberty to infer
essential issues such as standard of care and causation from
declarations in opposition to a MSJ, and that “all favorable
inferences” on causation and standard of care shall be given to the
plaintiff. It is still essential to put objections to evidence on
the record and request the court rule on each individual objection;
here, even though the plaintiff obtained a reversal, the appellate
court agreed with two of four of defendant’s objections. |
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