DIANE LOWERY, as Successor, etc.,
A153421
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
May 18, 2020
opinion on rehearing
CERTIFIED FOR PUBLICATION; (Contra Costa County Super. Ct. No. C1402354)
Background
Plaintiff‘s second amended complaint alleges causes of action for elder abuse, willful misconduct, fraud, battery and wrongful death. Defendants moved for summary judgment on the ground that each cause of action was without merit. On appeal, plaintiff challenges only the court‘s ruling with respect to the causes of action for elder abuse and wrongful death. Accordingly, we focus on the allegations of the complaint relating to those two causes of action.
On December 26, 2012, plaintiffs then 92-year-old mother was admitted as a patient at a nursing home operated by defendants and that at an unascertained time on January 2 or 3, Ms. Goros suffered an ischemic stroke. The complaint alleges that defendants “failed to recognize, respond, notify a physician and get Ms. Goros to an acute care hospital for treatment” for the stroke. Moreover, defendants allegedly “attempted to prevent family members from discovering the medical condition of Ms. Goros” and “prevented family members from obtaining emergency acute care treatment for Ms. Goros.” Defendants’ actions and failures to act allegedly caused “Ms. Goros to suffer permanent and irreversible brain damage” which ultimately caused her death approximately two years later.
Defendants moved for summary judgment on the ground, among others, that plaintiff could not establish causation. With respect to the elder abuse
In support of their motion, defendants submitted a declaration by Bruce Adornato, M.D., a neurologist with over 30 years of experience. Adornato opined that no act of defendants caused the stroke and that the time that elapsed between the stroke and Goros‘s ultimate arrival at the hospital had no bearing on the outcome. According to Adornato, Ms. Goros‘s stroke was not preventable and was caused by her atrial fibrillation. Adornato explained that “[o]ne of the major risk factors associated with atrial fibrillation is that it causes the heart to form intracardiac blood clots that can be ejected into the circulation, causing stroke and other types of embolic ischemia in vital organs.” He also opined that given Ms. Goros‘s age and significant medical co-morbidities there was no way to reverse the effects of the clot once the stoke occurred. Adornato opined that Ms. Goros was not a candidate for tissue plasminogen activator (TPA) to dissolve the clot and that “even if the stroke had occurred within the acute hospital witnessed and recognized by doctors as it occurred, medical intervention to reverse the stroke was not medically possible.”
In opposition to the motion, plaintiffs submitted the declaration of Lawrence S. Miller, M.D., “an expert in physical medicine, rehabilitation, geriatrics and pain disorders.” In a conclusory fashion, Miller claimed that the stroke was not caused by atrial fibrillation, but he did not identify its cause. He opined that “Ms. Goros was a candidate for TPA” and that TPA given within three hours of the stroke “would have provided the opportunity to have the effects of the stroke dramatically reduced and the severity of the stroke would not have contributed to the cause of her death like it did in this instance.” He also opined that the failure of the nursing home staff “to immediately transfer Ms. Goros to an acute care hospital after exhibiting symptoms of an ischemic stroke was grossly negligent and constituted elder abuse.”
Defendants objected to Miller‘s declaration on the grounds that as an expert on physical medicine and rehabilitation he was not qualified to render an expert opinion on the causation of a stroke and that his opinions were conclusory and speculative. The objection states, among other things, that “the testimony includes conclusory statements without any foundation for their reasoning. The witness states that he is a physiatrist, focusing on the musculoskeletal system, but provides no description of education, experience, training, skill, or knowledge regarding neurology, or any subject within the
The trial court sustained the objection and found that Miller‘s “conclusory expert opinion is deficient to raise a triable issue of fact as to causation.” The court explained, “Dr. Miller, a physiatrist, states that in his opinion the cause of the ischemic stroke cannot be traced back to atrial fibrillation. Dr. Miller has not explained how his training and experience qualifies him to give an opinion on neurological events such as the cause of an ischemic stroke. He cites no reasoning for this opinion. He also opines, based on his experience and documented medical literature, Ms. Goros was a candidate for TPA. He does not address the specific assertion of Dr. Adornato that given her age and co-morbidities she was not a candidate.” Ultimately, the court found that Miller was not qualified to give an expert opinion on whether Ms. Goros would have been a candidate for TPA.
Discussion
Under
“On appeal [w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citation.]’ [Citation.] Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff‘s claims.” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 253.) “We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ’ “specific facts,” ’ and cannot rely upon the allegations of the pleadings.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.)
Here, plaintiff does not dispute that defendants met their burden in moving for summary judgment and that the burden shifted to her to establish a triable
In Sargon, the Supreme Court repeated the well-established rule that we review a trial court‘s ruling “excluding or admitting expert testimony for abuse of discretion.” (Sargon, supra, 55 Cal.4th at p. 773.) The court recognized that trial courts have an obligation to “exclude unreliable evidence” but also cautioned that “due to the jury trial right, courts should not set the admission bar too high.” (Id. at p. 769.) The court explained, “under
Contrary to plaintiff‘s argument, the trial court did analyze Dr. Miller‘s declaration within the boundaries Sargon established. The court correctly observed that Miller failed to provide any basis for his opinions. (See Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1115 [“The trial court may strike or dismiss an expert declaration filed in connection with a summary judgment motion when the declaration states expert opinions that are speculative [or] lack foundation.“]; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 [” ‘An 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.’ “].)
Plaintiff suggests that “Dr. Miller‘s declaration clearly states what underlying facts he relied [on] and why the underlying facts led to his conclusion” that if Ms. Goros had received TPA within the first few hours of suffering the stroke “she would have had a chance at reversing the effects of her stroke.” But Miller‘s brief two-page declaration provides no such explanation. The declaration states only that “his opinion is based on his experience and documented medical literature.” The vague reliance on “documented medical literature” is insufficient and stands in stark contrast to Adornato‘s declaration which identifies the specific medical literature and the specific
Moreover, plaintiff cites no evidence in the record contradicting the court‘s finding that Dr. Miller did not have the education or experience to render an opinion about the cause or treatment of Ms. Goros‘s stroke. This ground independently supports the exclusion of Miller‘s declaration.
Finally, plaintiff argues that the court should have afforded her the opportunity to submit a supplemental declaration to augment the foundation for Miller‘s opinions. At the hearing, plaintiff sought leave to file a supplemental declaration only to clarify why Miller is qualified to offer opinions in the field of neurology. She did not request leave to allow Miller to provide the foundational evidence and reasons for his conclusory opinions. In any event, defendants’ objections to the declaration on these grounds were submitted more than a month before the hearing, providing ample time for plaintiff to have filed a motion for a continuance under
Based on the record before it, the court properly granted defendants’ motion for summary judgment.
Disposition
The judgment is affirmed. Defendants shall recover their costs on appeal.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.
Trial court: Contra Costa County Superior Court
Trial judge: Honorable Steve Austin
Counsel for Plaintiff and Appellant: Thomas M. Papez
Counsel for Defendants and Respondents: J SUPPLE LAW, A Professional Corporation John L. Supple Jodie Feusner Robert Sanford
A153421