Borrayo v. Avery, 205 Cal. Rptr. 3d 825

Plaintiff Lidia Borrayo underwent right first‑rib removal by Dr. G. James Avery for thoracic outlet syndrome and later developed pain and suspected sternoclavicular instability.
Plaintiff sued Avery for medical malpractice, alleging the surgery destabilized her right sternoclavicular joint.
Defendant moved for summary judgment, supported by a declaration from Dr. Jason T. Lee opining care met the standard.
Plaintiff opposed with a declaration from Dr. Abraham Castrejon Pineda, an orthopedic surgeon licensed in Mexico, who opined Avery breached the standard of care during surgery.
The trial court sustained defendant’s evidentiary objection to Pineda’s declaration, concluding it failed to show familiarity with the U.S. standard of care, and granted summary judgment for defendant.
The Court of Appeal reversed, holding the trial court abused its discretion in excluding Pineda’s declaration on the sole basis of his foreign practice/locality.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a physician licensed and practicing in Mexico (Pineda) was qualified to opine on the applicable standard of care in a California malpractice case	Pineda’s training, 30+ years practice, surgical experience (including TOS and sternoclavicular repair), familiarity with imaging, and some U.S. conference exposure show sufficient expertise and familiarity with similar circumstances	Because Pineda practices in Mexico and has not practiced in the U.S., he is not qualified to testify about the U.S. standard of care; his declaration therefore should be excluded	Court held locality is not dispositive; Pineda’s experience and familiarity with similar circumstances satisfied Evidence Code §720’s threshold — exclusion on locality grounds was an abuse of discretion
Whether exclusion of Pineda’s declaration warranted summary judgment for defendant	Excluding Pineda left no conflicting expert evidence to oppose defendant’s prima facie showing, so summary judgment should be reversed	The declaration was speculative/lacked foundation and did not show familiarity with U.S. standard, so exclusion and summary judgment were proper	Court reversed judgment: because Pineda should have been allowed to testify, plaintiff presented sufficient opposing expert evidence to preclude summary judgment; further merits challenges go to weight, cross‑examination, and trial

Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (describing burdens on summary judgment)
Avivi v. Centro Medico Urgente Medical Center, 159 Cal.App.4th 463 (expert need not have practiced in the same locality; focus is on familiarity with similar circumstances)
Brown v. Colm, 11 Cal.3d 639 (degree of an expert’s knowledge goes to weight, not admissibility)
Sinz v. Owens, 33 Cal.2d 749 (historical locality rationale)
Mann v. Cracchiolo, 38 Cal.3d 18 (abuse of discretion where witness disclosed sufficient knowledge)
Munro v. Regents of University of California, 215 Cal.App.3d 977 (defendant entitled to summary judgment if plaintiff has no conflicting expert evidence)