Expert Witness Declaration Must Be “Adequately Supported”, Cal. App.
An expert opinion filed in opposition to a summary judgment does not need to be as extensive as those offered in support, but it still must be "adequately supported" to be admissible, the California Court of Appeals has ruled.
In Sanchez v. Kern Emergency Medical Transportation Corp., Cal App. 5th, 2017, Abraham Sanchez, Jr. sustained an injury to his head while playing high school football, and he alleged that Kern, who provided a standby ambulance at the game, was grossly negligent in not properly assessing his condition and immediately transporting him to the hospital.
Instead of using the standby ambulance, Kern called for a transport ambulance to take Sanchez to the hospital. Sanchez was diagnosed with a subdural hematoma, given Mannitol to reduce swelling and then underwent craniotomy surgery to relieve his brain hemorrhage, but he suffered a posterior artery stroke. Sanchez alleged that the delay by Kern made his brain injury worse.
The delay between the time the paramedic first reached Sanchez and the transport ambulance leaving for the hospital was approximately 17 minutes. Sanchez's neurological surgery expert witness, Dr. Fardad Mobin, opined that the had Sanchez "been transported immediately upon initial contact by the paramedic, there would have been a decrease in brain swelling, and thereby pressure, because the administration of Mannitol would have occurred much sooner."
Kern moved for summary judgment, arguing that there was no evidence to support Sanchez's allegations. Kern argued that its paramedic properly evaluated Sanchez's condition and could not have immediately taken him to the hospital in the standby ambulance Code 3 (lights and siren) because Sanchez did not initially meet Kern County's criteria for Code 3 transport.
Kern's paramedic expert witness, Charles Flack, provided an expert declaration referencing literature which showed that, on average, paramedic teams performed spinal immobilization in 5.64, with the minimum time being 3.07 minutes and the maximum 8.41 minutes. Kern calculated an approximate two and one-half minute delay, that might be considered unnecessary.
Kern's emergency medicine expert witness, Dr. David Schriger, provided an expert declaration that he had reviewed the research literature and found t that there was "no evidence in the literature to support the notion that delays in treatment in the range of 0 to 30 minutes affect patient outcome in cases of subdural hematoma."
Kern's expert neurologist, Dr. Jeff Victoroff, observed in his expert witness declaration that it would be unrealistic to expect the standby ambulance to immediately transport Sanchez, without assessing him, declaring an emergency, applying spinal precautions, and loading him into the standby ambulance.
Victoroff estimated the actual delay from the use of two ambulances to be considerably less than the 23 minutes between paramedic's first contact with Sanchez and the activation of a Code 3 while the transport ambulance was in route to the hospital. Based on his own review of the literature, Victoroff endorsed Schriger's conclusion that there was no evidence to support the notion that delays in treatment of less than 30 minutes affect patient outcome in cases of subdural hematoma.
Sanchez' neurological expert, Mobin, did not respond to or refute Flack's time calculations, nor controvert Schriger's conclusions, nor review the conclusions of Victoroff. The Appellate Court found that Mobin provided no contrary medical literature or evidence, nor any explanation as to why he reached a different conclusion.
Mobin had declared that he reviewed various materials, including Sanchez' hospital records and some depositions, but Mobin did not set out any of the relevant time periods, except for referencing the 46 minutes between Sanchez' first contact with the paramedic and his arrival at the hospital trauma room.
Mobin's opinion that Sanchez should have been transported immediately was "not supported by the undisputed facts of this case," the Appellate Court found. It was undisputed that the paramedic had to first assess Sanchez' condition, and that the spinal precautions were necessary. While Mobin repeatedly referenced "the delay" in his declaration, the Appellate Court found that the only delay at issue was in transferring Sanchez to the second ambulance, but Mobin did not establish that his opinions were based solely on this transfer delay.
Sanchez contended that, in light of the rule of liberal construction, an expert declaration filed in opposition to a summary judgment need not be as detailed or extensive as a declaration in support of a summary judgment. Sanchez cited Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 and Cal.App.4th 1320 (Jennifer C.) and Powell, supra, 151 Cal.App.4th 112.
The Appellate Court agreed that the cases cited by Sanchez did conclude that expert declarations oppossing summary judgment need not be as detailed as those in support of it, but found those cases substantially different. Those opposition expert declarations did not show the medical literature refuting the assumptions on which the expert's opinions were based. In the case at hand, Mobin assumed, contrary to the medical literature and without challenging that literature in any way, that any delay in reaching the hospital increased the severity of Sanchez injury.
When the opponents experts refute the assumptions used by expert witnesses to form their opinions, those expert witnesses must do more than simply assert those discredited assumptions in order to meet the admissibility requirements of Evidence Code section 801, subdivision (b).
Expert opinions must be adequately supported to be admissible.