How to lose an SJ motion when your expert goes unrebutted

How do you lose a summary judgment motion in a medical malpractice case when your defense expert's declaration is unrebutted, except for the opposing party's evidentiary objections? Simple, fail to allege any facts let alone material facts in the expert declaration that would allow the court to determine whether the standard of care was satisfied as a matter of law, as shown in Doe v. Good Samaritan Hospital, 2018 DJDAR 4829 (Cal. App. 5th Dist. May 21, 2018).

This self-inflicted error is mindboggling; it implies a misunderstanding of the basic tenant "that law is a means of governing social conduct and settling personal disputes by the application of recognized or established principles to the 'facts' of specific situations." Lee Loevinger, "Facts, Evidence and Legal Proof," 9 Cas. W. Res. L. Rev. 154 (1958).

The facts of Good Samaritan Hospital are as follows: Plaintiff, a minor patient voluntarily admitted to the hospital's adolescent psychiatric unit, was sodomized by his roommate, another adolescent psychiatric patient. The hospital knew the plaintiff's roommate was dangerous and a threat because he had been admitted involuntarily as being suicidal and violent with homicidal ideations (Welfare and Institutions Code Section 5150) for assaulting and injuring his stepfather and for the protection of younger siblings. Yet, the treating doctor only ordered observation of the perpetrator every 15 minutes, as opposed to supervision at all times, and otherwise ignored the room placement as the hospital's determination.

As part of its motion for summary judgment, the hospital submitted an expert declaration by a psychiatric nurse who opined that the hospital did not breach its duty of professional care in any respect or contribute to appellant's injury in any way. However, this three-page declaration did "not differentiate between the issues, and predominantly contains ultimate facts and conclusions without underlying facts supported by evidence."

The appellate court determined that the hospital "failed to present a complete defense to every theory of liability or demonstrate [there was] no factual basis for recovery." Consequently, the court overturned the grant of summary judgment for defendant reiterating the finding in Kelley v. Trunk, 66 Cal. App. 4th 519, 524 (1998), that "the expert's [medical] opinion must rest upon relevant facts and must consist of something more than a legal conclusion."

Even if the hospital's expert had discussed the specific facts of the case in the declaration, this would not now necessarily be enough to support a grant of a motion for summary judgment. The California Supreme Court in People v. Sanchez, 63 Cal. 4th 665 (2016), clarified that "the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony."

Sanchez established that an expert in a criminal case -- in Sanchez, a gang expert -- cannot base an opinion on the assumed truth of case-specific facts ("relating to the particular events and participants alleged to have been involved in the case being tried") that are inadmissible hearsay for which no independent competent evidence is adduced.

This evidentiary requirement also applies to civil cases. People ex rel. Reisig v. Acuna, 9 Cal. App. 5th 1 (2017). If the relevant case-specific facts in either a criminal or civil case are hearsay without an exception, an expert cannot relate those facts to the jury in expressing his or her opinion.

Should defense counsel in Good Samaritan Hospital consider filing another motion for summary judgment, they should now know what Code of Civil Procedure Section 437c(c) requires when it states, "Supporting ... declarations ... shall set forth admissible evidence." "If it is a case-specific fact and the witness has no personal knowledge of it, if no hearsay exception applies, and if the expert treats the fact as true, the expert simply may not testify about it." People v. Stamps, 3 Cal. App. 5th 988, 996 (2016).

However, an expert can give testimony concerning background information regarding her knowledge, expertise and the premises generally accepted in her field even though such testimony is hearsay since it is being offered for its truth.

Additionally, an expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code Section 802 properly allows an expert to relate generally the kind and source of the "matter" upon which his opinion rests.

Evidence that does not depend on an expert's assuming the truth of case-specific hearsay not proven by independent competent evidence or subject to a hearsay exception includes things like records of criminal convictions, trial testimony or spontaneous statements by victims, and non-case-specific hearsay about gang culture. Acuna, 9 Cal. App. 5th at 25-27.

It is necessary to point out that neither Sanchez nor its progeny make any mention of an earlier seminal case on experts and the application of Evidence Code Sections 801 and 802, relating to the scope of expert testimony, Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012). This is important since, according a recent appellate court, "there is only one standard for admissibility of expert opinion evidence in California. Sargon describes that standard." Apple Inc. v. Superior Court, 19 Cal. App. 5th 1101, 1106 (2018).

Sargon held that the trial court has discretion as a "gatekeeper" to determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on "in forming an opinion upon the subject to which his testimony relates." Thus, the matter relied on must provide a reasonable basis for the particular opinion offered, and will be inadmissible if the expert opinion is based on speculation or conjecture.

The takeaway is that both Sargon and Sanchez illustrate how to comply with Evidence Code Sections 801 and 802 when seeking to establish admissible expert testimony that is not speculative or conjecture and is not supported by hearsay without an exception.