Kent v. Wu CA2/8

Filed 12/2/20 Kent v. Wu CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOSHUA KENT, B297303
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC682905)
v.
DAVID D. WU et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Christopher Lui, Judge. Affirmed.
Ferguson Case Orr Paterson and John A. Hribar for
Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson;
Carroll, Kelly, Trotter, Franzen & McBride, Michael J. Trotter
and Jessica Muñoz for Defendants and Respondents.
_________________________
Plaintiff Joshua Kent filed a civil action for medical
malpractice against defendant David D. Wu. M.D. Kent appeals
the summary judgment entered in favor of Wu. He also appeals
the denial of his motion for a new trial. He contends summary
judgment was improper because 1) Wu failed to offer evidence
that the epidural he performed on Kent was medically necessary;
2) Wu did not obtain informed consent for the epidural; 3) Wu
offered only a conclusory expert declaration which was not
sufficient to shift the burden to Kent to create a triable issue of
fact; 4) the declaration of his expert was sufficient to create a
triable issue of fact on causation. He also contends the trial court
erred in denying the new trial motion for the same reasons the
court erred in granting Wu’s summary judgment motion. We
affirm the judgment.
BACKGROUND
On July 25, 2016, Kent was in a motor vehicle accident. He
was struck from behind and believes that, as a result, his right
hand struck the steering wheel. Kent was thrown forward by the
impact. On July 31, 2016, Kent visited a hospital emergency
room and reported that since the accident he had been
experiencing lower back and right wrist/thumb pain.
On September 1, 2016, Kent visited Dr. Wu, a pain
management specialist. Dr. Wu injected steroids into several
locations in Kent’s right thumb area. On September 15, 2016,
Kent returned to Dr. Wu who again injected steroids into several
locations in Kent’s right thumb area. On September 24, 2106,
Dr. Wu performed a cervical epidural procedure or injection on
Kent.
Kent’s symptoms did not improve, and on October 31, 2016,
he visited Dr. Eleonora Spokoyny, a neurologist. He complained
2
of ringing in his ears, constant headaches, dizziness, bilateral
neck pain, mid back pain, lower back pain, right hand and wrist
pain, and numbness in his right thumb. Dr. Spokoyny
determined to a reasonable degree of medical probability that
Kent’s condition and symptoms were the direct result of his July
25, 2016 car accident.
Kent continued to visit doctors seeking relief for various
symptoms he was suffering. In this course of this action, Kent
has most frequently referred to his visits to Dr. Helm and Dr.
Kluber, but in his interrogatory responses he also identified Dr.
Omar Mora, Dr. Nick Halikis, Dr. Sang Le, Dr. Ali Elahi, Dr.
Hannah Chung, and Dr. Moheimani.
Eventually, Kent filed this action against Wu, alleging Wu
negligently performed the injections to Kent’s right thumb area,
resulting in “discoloration and injury” to the thumb. Kent also
alleged the cervical epidural performed by Wu was not medically
necessary. Kent did not allege any specific injury from the
epidural, and did not allege that the epidural itself was the
injury. Kent later stated that his neck pain increased after the
epidural. Kent continued to visit doctors while this action was
pending.
Wu moved for summary judgment on the ground that he
did not cause Kent’s injuries. After the trial court granted
summary judgment in favor of Wu, Kent moved for a new trial on
essentially the same grounds as he had opposed summary
judgment. The motion was denied.
3
DISCUSSION
We review an order granting or denying summary
judgment or summary adjudication independently. (Wiener v.
Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142;
Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) In making this
review: “ ‘ “First, we identify the issues raised by the pleadings,
since it is these allegations to which the motion must respond;
secondly, we determine whether the moving party’s showing has
established facts which negate the opponent’s claims and justify a
judgment in movant’s favor; when a summary judgment motion
prima facie justifies a judgment, the third and final step is to
determine whether the opposition demonstrates the existence of a
triable, material factual issue.” ’ ” (Claudio v. Regents of
University of California (2005) 134 Cal.App.4th 224, 229
(Claudio).) “’ ‘Declarations of the moving party are strictly
construed, those of the opposing party are liberally construed,
and doubts as to whether a summary judgment should be granted
must be resolved in favor of the opposing party. The court
focuses on issue finding; it does not resolve issues of fact.’ ”
(Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th
399, 409 (Assilzadeh).)
“ ‘[D]e novo review does not obligate us to cull the record
for the benefit of the appellant in order to attempt to uncover the
requisite triable issues. As with an appeal from any judgment, it
is the appellant’s responsibility to affirmatively demonstrate
error and, therefore, to point out the triable issues the appellant
claims are present by citation to the record and any supporting
authority. In other words, review is limited to issues which have
been adequately raised and briefed.’ ” (Claudio, supra,
134 Cal.App.4th at p. 230.)
4
In motions for summary judgment or adjudication, “ ‘all
material facts must be set forth in the separate statement. “This
is the Golden Rule of Summary Adjudication: if it is not set forth
in the separate statement, it does not exist.” ’ ” [Citation.] Thus,
when the ‘fact’ is not mentioned in the separate statement, it is
irrelevant that such fact might be buried in the mound of
paperwork filed with the court, because the statutory purposes
are not furthered by unhighlighted facts.” (North Coast Business
Park v. Nielsen Construction Co (1993) 17 Cal.App.4th 22, 30–
31.) “The corollary for an opposing party, unless it wishes to
advance additional disputed or undisputed material facts, is that
it clearly indicate which of the facts contained in the moving
party’s separate statement it disputes. (§ 437c, subd. (b)(3).)
Each party also must supply a ‘reference to the supporting
evidence’ in its separate statement (§ 437c, subd. (b)(1), (3)).”
(Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co.
(2005) 133 Cal.App.4th 1197, 1214 (Parkview Villas).)
“ ‘If, in deciding this appeal, we find there is no issue of
material fact, we affirm the summary judgment if it is correct on
any legal theory applicable to this case, whether or not that
theory was adopted by the trial court, and whether it was raised
by the [defendant] in the trial court or first addressed on
appeal.’ ” (Assilzadeh, supra, 82 Cal.App.4th at p. 409.)
There is no reporter’s transcript for the hearing on the
summary judgment motion. Kent contends none is needed and
Wu does not disagree. The trial court provided a detailed
statement of its ruling. We agree with the parties that the claims
on appeal may be resolved by reference to the clerk’s transcript
alone.
5
I. In Opposing the Motion for Summary Judgment Kent
Failed to Clearly Raise a Theory of Self-Evident Causation
As to the Epidural and So That Theory Did Not Preclude
Summary Judgment in Wu’s Favor.
Kent contends the cervical epidural was medically
unnecessary and the trial court erred in granting summary
judgment because causation is “self-evident” when a doctor
performs a medically unnecessary procedure. Causation may be
self-evident from a medically unnecessary procedure, but a
plaintiff’s reliance on that theory is not self-evident. Kent has
elected to proceed without a reporter’s transcript, so we cannot
ascertain whether he raised this theory at the hearing on the
motion for summary judgment. The clerk’s transcript, however,
shows that Kent did not clearly raise or develop the claim that
his injury from the epidural was based solely on the procedure
being unnecessary. Thus, this undeveloped theory may not be
raised now to challenge the summary judgment. (Insurance Co.
of State of Pennsylvania v. American Safety Indemnity Co. (2019)
32 Cal.App.5th 898, 922.)
“ ‘The elements of a cause of action for professional
negligence are failure to use the skill and care that a reasonably
careful professional operating in the field would have used in
similar circumstances, which failure proximately causes damage
to plaintiff.’ ” (Cyr v. McGovran (2012) 206 Cal.App.4th
645, 651.) With respect to the element of proximate cause, “[i]n a
medical malpractice action, the evidence must be sufficient to
allow the jury to infer that in the absence of the defendant’s
negligence, there was a reasonable medical probability the
plaintiff would have obtained a better result.” (Alef v. Alta Bates
Hospital (1992) 5 Cal.App.4th 208, 216.) Self-evident causation is
6
not in fact self-evident. It does not arise, as Kent seems to
believe, out of thin air. It is “self evident that unnecessary
surgery is injurious and causes harm to a patient. Even if a
surgery is executed flawlessly, if the surgery were unnecessary,
the surgery in and of itself constitutes harm.” (Tortorella v.
Castro (2006) 140 Cal.App.4th 1, 11.) If, in opposing summary
judgement, the opposing papers raise a triable issue as to
whether a physician deviated from the standard of care by
unnecessarily performing surgery, that is sufficient also to raise
triable issues with respect to the two remaining elements of a
cause of action for medical malpractice, namely, “ ‘ “ ‘proximate
causal connection between the negligent conduct and the
resulting injury; and . . . actual loss or damage resulting from the
professional’s negligence.’ ” ’ ” (Id. at p. 13; see Jameson v. Desta
(2013) 215 Cal.App.4th 1144, 1166–1167.)
Kent did not offer any evidence that the epidural was
medically unnecessary, which would clearly have raised a triable
issue of material fact on causation. He now contends that
because his complaint alleged the procedure was medically
unnecessary, the burden was on Wu to offer evidence that it was
medically appropriate. Absent evidence by Wu negating this
allegation, Kent contends he had no burden to offer evidence.
Kent bases this argument on the general rule that a
plaintiff “is allowed to rely upon the allegations of the complaint
which were unchallenged in the motion itself, but only to
demonstrate that [a defendant] has not met its initial burden of
showing an entitlement to summary judgment. For example, if a
plaintiff had alleged three distinct breaches of duty which caused
him a single injury, and the defendant filed a motion for
summary judgment with evidence contradicting only two of those
7
breaches, the plaintiff could rely upon the third, unchallenged,
allegation of breach to demonstrate the motion was insufficient
on its face to shift the burden.” (Tilley v. CZ Master Assn. (2005)
131 Cal.App.4th 464, 478.)
Wu did offer evidence in the form of an expert declaration
by Dr. Steven Richeimer, that the epidural did not cause Kent’s
injuries. The only question remaining, then, with respect to the
epidural is whether Kent sufficiently alleged in his complaint
that undergoing the unnecessary epidural itself was the injury of
which he complained, that is, the self-evident injury.
In determining whether a particular theory is framed by
the pleadings, “ ‘[t]he test is whether such a particular theory or
defense is one that the opposing party could have reasonably
anticipated would be pursued.’ ” (Jones v. Awad (2019)
39 Cal.App.5th 1200, 1211.)
Here, Kent alleged Wu “negligently performed right thumb
insertion and sheath injections to Plaintiff JOSHUA KENT on
9/1/16 and right median nerve/carpal tunnel injections to Plaintiff
JOSHUA KENT on 9/15/16, that injured Plaintiff by causing
discoloration and injury to his right thumb; and that Defendants,
and each of them, negligently provided cervical epidural steroid
injection treatment to Plaintiff JOSHUA KENT on 9/24/16, in
that this cervical epidural steroid injection treatment was not
medically necessary.” While Kent did not allege any specific
injury tied to the epidural, he also did not expressly allege that
the unnecessary epidural was itself the injury.
Discovery often clarifies a plaintiff’s theories of the case,
but it did not do so here. In response to special interrogatories,
Kent answered: “As to my cervical injury: the cervical epidural
steroid injection treatment provided on 9/24/16 was not medically
8
necessary as there is no MRI finding showing any disc disease or
neural element impingement, and there is no evidence of
radicular symptoms. Furthermore, Dr. Wu never recommended
such treatment in his evaluation either. Instead, he
recommended bilateral C3-6 medial branch blocks, a completely
different procedure.” This is not an allegation that undergoing
the cervical epidural was the injury Kent suffered; it is a claim
that Kent did not receive the recommended appropriate
treatment of a branch block that would have stopped his pain.
Thus, we question whether Wu could have reasonably
anticipated from the complaint and discovery that Kent was
pursuing a theory that undergoing the unnecessary epidural
itself was the injury he suffered, as opposed to the theory that the
injuries Kent continued to suffer were caused or exacerbated by
Wu’s negligent treatment, necessary or not. When Wu moved for
summary judgment, he did so on the ground that the epidural did
not cause any injury to Kent. In his separate statement of
undisputed facts, Wu proposed as an undisputed fact that “[a]ny
alleged negligent treatment did not cause plaintiff any injury.”
He also proposed: “To a reasonable degree of medical probability,
no alleged violation of the standard of care by Dr. Wu caused or
contributed to plaintiff’s injuries. Moreover, no alleged violation
of the standard of care by defendants was a significant
contributing factor in plaintiff’s injuries.”
If Kent had intended to pursue the “self-evident” injury
theory, his opposition was the time to make this clear. Kent
could have opposed the motion by arguing that his complaint
alleged the epidural was itself his injury because it was
unnecessary. He did not do so. Kent’s arguments in his
memorandum in opposition to the motion talk around such an
9
argument, instead of making it. He argued that Wu basically
negligently chose an incorrect and ineffective treatment for his
medical symptoms. Kent stated that the cervical epidural
injection was “inappropriate” and “Dr. Helm states that any
cervical epidural injections provided were not reasonable and
necessary to cure or relieve the injuries suffered” in the motor
vehicle accident. Kent also stated: “Based on Dr. Helm’s
statements in the medical records there also exists a triable issue
of fact to if the cervical injections were appropriate and if Dr.
Wu’s care in administering the cervical injections was negligent.”
Kent also contended “the cervical steroid injections was also
[below] the standard of care and caused Plaintiff damages.”1
Kent, however, did not directly argue, factually or legally, that
undergoing the cervical epidural itself was the injury he
sustained.
Instead, in his presentation of actual evidence, Kent
presented evidence only that the epidural exacerbated his
injuries. In his declaration in support of his opposition, Kent
stated: “I had neck pain after the auto accident July 25th, 2016.
This neck pain significantly increased after the cervical epidural
1 Kent attached a set of medical records from a Dr. Helms as
Exhibit A to his declaration. Assuming for the sake of argument
these records were admissible, Kent did not offer any evidence
that showed Dr. Helms was qualified as an expert on the issue of
epidural injections. Additionally, Kent did not cite or refer to the
medical records of Dr. Helms in his separate statement. Thus
the records were not properly before the court to support Kent’s
opposition to the motion. In opposition to the motion, Kent
offered the declaration of his expert witness, Dr. Walker.
However, Dr. Walker did not discuss the cervical epidural at all.
He only discussed the steroid injections to Kent’s thumb.
10
injection on September 24th, 2016.” He did not declare that he
suffered injury from the mere performance of the epidural.
In response to Wu’s separate statement of undisputed fact
that Kent’s “neck pain with immediate onset after a motor
vehicle accident was consistent with Dr. Wu’s [diagnosis] of . . .
spondylopathy of the cervical and lumbar region,” Kent stated:
“Disputed. Plaintiff complained of neck pain following [motor
vehicle accident], plaintiff also complained of increased neck pain
following unnecessary Cervical Epidural by Dr. Wu. Declaration
of Joshua Kent.”
In response to Dr. Wu’s separate statement that “[a]ny
alleged negligent treatment did not cause plaintiff any injury,”
Kent replied: “Disputed. Injections of excess steroids caused
Joshua Kent’s injuries. Declaration of Dr. John Walker.” In
response to Dr. Wu’s statement that “no alleged violation of the
standard of care by Dr. Wu caused or contributed to plaintiff’s
injuries,” Kent responded: “Disputed. The treatment rendered
by Dr. Wu to plaintiff fell below the standard of care and resulted
in the plaintiff’s ruptured thumb tendon.” Thus, while Kent
argued that negligent care or care in violation of the standard of
care caused him injury, the only injury he identified was to his
thumb.
Viewing the record as a whole, we conclude Kent did not
fully develop or support his injury was having to undergo the
cervical epidural itself, a self-evident injury. Summary judgment
was properly granted.
11
II. Kent Did Not Plead a Lack of Consent in His Complaint
and So Could Not Raise This Issue in Opposition to
Summary Judgment.
Kent also contends causation is “self-evident” when a
doctor performs a medical procedure without consent. In his
complaint Kent did not plead lack of consent, and never raised
the issue before his opposition. Defendants moving for summary
judgment need address only the issues raised by the complaint,
and plaintiffs may not bring up new issues in their opposing
papers. (Kanovsky v. At Your Door Self Storage (2019)
42 Cal.App.5th 594, 601.) If Kent wished to raise this claim, he
should have sought leave to amend his complaint before the
hearing on the summary judgment motion. (Johnson v. The
Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636.)
III. Dr. Richeimer’s Declaration Is Sufficient to Establish Lack
of Causation for Kent’s Thumb Injuries.
Kent contends the trial court erred in granting summary
judgment because Dr. Richeimer’s declaration was conclusory
and so insufficient to establish a lack of causation. Wu contends
Kent forfeited this claim by failing to object to the declaration in
the trial court.
Wu relies primarily on our decision in Fernandez v.
Alexander (2019) 31 Cal.App.5th 770 in which we stated that
plaintiff’s failure to object to the declaration of defendant’s expert
witness had forfeited her two claims that (1) the witness’s opinion
on causation was conclusory and speculative, and (2) defendant
had failed to carry his burden of producing evidence
demonstrating that there was no triable issue of material fact as
to causation. (Id. at p. 780.)
12
Kent responds that Fernandez is against the weight of
California law. He contends a trial court cannot grant summary
judgment if the moving party’s evidence is insufficient to meet
the party’s initial burden, even when no objections are made and
no opposition is filed. (Y.K.A. Industries, Inc. v. Redevelopment
Agency of City of San Jose (2009) 174 Cal.App.4th 339, 367). He
also contends a moving party’s burden “cannot be satisfied by an
expert declaration consisting of ultimate facts and conclusions
that are unsupported by factual detail and reasoned explanation,
even if it is admitted and unopposed.” (Doe v. Good Samaritan
Hospital (2018) 23 Cal.App.5th 653, 657.)
Our statement in Fernandez is effectively dicta, as we
considered plaintiff’s claim but found the expert opinion
sufficient. We take essentially the same path here: assuming the
broad claim is not forfeited, we find Dr. Richeimer’s declaration
constitutes sufficient evidence to negate causation.
1. Dr. Richeimer’s Declaration Contains Sufficient
Factual Detail And Reasoned Explanation
An expert’s declaration in support of summary judgment
must be supported by reasons or explanations and must be
detailed and have a factual basis. (Kelley v. Trunk (1998)
66 Cal.App.4th 519, 524; Powell v. Kleinman (2007)
151 Cal.App.4th 112, 123.) “[A]n opinion unsupported by reason
or explanation does not establish the absence of a material fact
issue for trial, as required for summary judgment.” (Kelley v.
Trunk, at p. 524.) The summary judgment standard “is not
satisfied by laconic expert declarations which provide only an
ultimate opinion, unsupported by rational explanation.” (Id. at
p. 525.)
13
Kent and Wu both cite to various cases which they contend
show the insufficiency or sufficiency of Dr. Richeimer’s
declaration. We think the declaration can best be evaluated in
light of the complexity of the case for which it is offered.
This is, in fact, a fairly simple medical malpractice claim.
It involves treatment for hand and neck injuries sustained in a
car accident, and a claim that the treatment provided by
defendant exacerbated those injuries or caused new and more
serious injuries. Dr. Richeimer appropriately identified the
materials he reviewed, and also described certain key pieces of
information in those records which supported his expert opinion
on lack of causation. Dr. Richeimer noted that when Kent went
to the emergency room six days after his motor vehicle accident,
Ken stated that “since the accident, he had experienced lower
back, right wrist/thumb, and right foot pain.” (Italics added.) Dr.
Richeimer noted Kent’s description of his pain when he was first
seen by Dr. Wu: Kent “described the thumb pain as throbbing,
shooting, sharp, and a 9 out of 10 in severity.” Dr. Richeimer
pointed out that Dr. Wu concluded “the right thumb pain was
indicative of tenosynovitis.” Dr. Richeimer also noted that Kent
complained of “right hand and wrist pain and numbness in his
right thumb” a month later to neurologist Spokoyny, and that
Spokoyny determined to a reasonable degree of medical
probability, that Kent’s right and hand and wrist pain and
numbness in his right thumb were “the direct result of the
injuries he sustained [in a] motor vehicle accident.”
Dr. Richeimer opined Kent’s complaint of pain which began
immediately after a vehicle accident was consistent with Wu’s
diagnosis of right thumb pain and that Spokoyny’s assessment
that Kent’s hand and wrist pain and thumb numbness were a
14
direct result of the vehicle accident was “accurate and
appropriate.” Only then did Dr. Richeimer state that based on
the materials he had reviewed and his personal knowledge,
background, training, and experience, it was his expert opinion
that Kent’s “complaints are consistent with the mechanism of car
accident injuries . . . .”
These statements are more than sufficient to show the facts
which underlay Dr. Richeimer’s opinion: the timing and nature
of the injuries combined with a finding by a neurologist that the
injuries were not neurological. Moreover, by finding that Dr.
Spokoyny’s determination was accurate and correct, Dr.
Richeimer agreed that to a reasonable degree of medical
probability, the injuries were caused by the vehicle accident.
2. Dr. Richeimer Reviewed Information About Kent’s
Injury After Wu’s Treatment Ended.
Kent more specifically contends that Dr. Richeimer’s
declaration is deficient because the doctor “did not know anything
about what happened to Kent’s thumb after Dr. Wu’s treatment.”
Kent contends Dr. Richeimer did not know that Kent had
suffered a ruptured thumb tendon after Wu’s treatment because
Richeimer never examined Kent and the only medical records he
reviewed from after Wu’s treatment were the records of a
neurologist. Kent cites Dr. Richeimer’s declaration itself and
pages 186–187 of the clerk’s transcript to support this claim.
Kent is mistaken.
Dr. Richeimer stated that he reviewed “the Declaration of
Jessica Muñoz, and copies of the records as identified in Ms.
Muñoz’s declaration.” Among the exhibits to Ms. Muñoz’s
declaration were Kent’s responses to special interrogatories in
which Kent identified specific physical injuries to his right
15
thumb, stating another doctor, Dr. Moheimani, had observed
“ ‘discoloration and atrophy of the extensor pollicis longus.’ ” Dr.
Richeimer also declared: “It is my understanding based upon
plaintiff’s responses to written discovery that plaintiff’s only
contention against defendants is that as a result of Dr. Wu’s
treatment, plaintiff has sustained permanent injuries to his
cervical spine and right thumb/wrist.” (Italics added.) Thus, Dr.
Richeimer did have information about Kent’s condition as of
January 2018 when Kent signed the interrogatory responses.
This was about 15 months after Kent’s September 2016 visits to
Dr. Wu.
As for Kent’s claim that Dr. Richeimer was ignorant of
Kent’s ruptured thumb tendon, we share that ignorance. There
is no evidence in the record on appeal that Kent suffered such a
rupture. The document at pages 186–187 of the clerk’s transcript
is a report from Mink Radiologic Imaging. There are numerous
evidentiary issues raised by this report.2 We focus on two key
issues: 1) the report says only that Kent’s tendon has “marked
attenuation or perhaps complete rupture”; and 2) the report is
not referenced in the separate statement as required. (Parkview
Villas, supra, (2005) 133 Cal.App.4th at p. 1214 [each party also
2 In the clerk’s transcript, the Mink report appears after
Kent’s declaration, following a tab page labelled Exhibit B. The
declaration itself does not refer to the Mink report or to an
Exhibit B. There is no basis for us to consider this random
document of unknown provenance. Dr. Walker, offered by Kent
as an expert witness, did state that he reviewed the Mink report.
Experts may rely on hearsay such as the unauthenticated Mink
report, but the trial court ultimately found, correctly, that Dr.
Walker did not qualify as an expert.
16
must supply a ‘reference to the supporting evidence’ in its
separate statement])3
To the extent Kent complains that Dr. Richeimer did not
describe Kent’s injuries in the declaration, Kent has forfeited any
such objection by failing to make it in the trial court. This is not,
as Kent suggests, a situation where Dr. Richeimer did not know
anything about Kent’s later medical condition. If Kent had
objected to the lack of a description of his injuries in the
Richeimer declaration, the doctor could, at a minimum, have
clarified what he learned about Kent’s injuries from his written
discovery responses, and possibly also from Kent’s deposition,
which the doctor also reviewed. This sort of gap filler evidence is
precisely the sort of evidence a moving party may expect to offer
after a gap in the original evidence is created by the opposition.
(See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.)
3
In response to Wu’s statement that no alleged violation of
the standard of care caused Kent’s injuries, Kent replied:
“Disputed. The treatment rendered by Dr. Wu to the plaintiff fell
below the standard of care and resulted in plaintiff’s ruptured
thumb tendon.” There is no record cite.
Kent mentioned a ruptured thumb tendon only one other
time in the separate statement. In response to Dr. Wu’s
statement that Kent’s “complaints are consistent with the
mechanism of car accident injuries and not Dr. Wu’s treatment,”
Kent replied: “Disputed. Plaintiff did not suffer a ruptured
tendon in the accident, only a sprain or tenosynovitis, refer to
Exhibit C.” Exhibit C is Dr. Wu’s medical records.
17
3 Information About the Type or Amount of Steroids
Injected Was Unnecessary.
Kent also contends the Richeimer declaration is deficient
because he “did not know any of the details about Dr. Wu’s
treatment of Kent’s thumb. All he stated was that Dr. Wu had
‘administered steroid injections’ to Kent’s thumb on two
occasions. . . . He did not know the number of injections or the
type or amount of steroid medication that was injected each
time.”
Once Dr. Richeimer identified the cause of Kent’s thumb
injury as the car accident to a reasonable degree of medical
certainty, he was not required to expressly opine that all other
proffered causes did not, to a reasonable degree of medical
certainty, cause the injury. Put differently, proving one cause to
a medical probability eliminated all other proffered causes.
Medical probability is 51 percent. An injury which has a
51 percent probability of being caused by a vehicle accident
cannot also have a 51 percent probability of being caused by
steroids.4
Nevertheless, Dr. Richeimer did elect to discuss Kent’s
theory of causation due to steroids. Dr. Richeimer opined Kent’s
complaints were not consistent with Wu’s treatment. He also
opined “to a reasonable degree of medical probability no alleged
violation of the standard of care by Dr. Wu caused or contributed
to plaintiff’s injuries.” Dr. Richeimer had previously described
Wu’s treatment as steroid injections into Kent’s right thumb
“insertion and sheath” on Kent’s first visit, and additional steroid
4 It still might be possible for an action or inaction to be a
contributing cause to the injury, but this was not Kent’s claim.
18
injections into Kent’s right thumb “tendon and insertion” two
weeks later. Thus, Dr. Richeimer’s opinion as a whole was that
steroid injections were not consistent with Kent’s thumb injuries
and that even if administered incorrectly, they did not cause
those injuries to a reasonable degree of medical certainty.
Kent contends, in effect, that Dr. Richeimer could not form
this opinion without knowing the type and amount of steroids
injected. Dr. Richeimer’s opinion was that steroids did not cause
the type of thumb injury suffered by Kent, even if improperly
administered. The time to dispute that was in the trial court,
with expert testimony that the amount or type of steroids
mattered and that some type or amount could cause the thumb
injury suffered by Kent. Kent failed to do this.
Once Dr. Richeimer gave his opinion that steroids were not
consistent with Kent’s injuries, there was little else to say. In
this regard, the opinion in Ochoa v. Pacific Gas & Electric Co.
(1998) 61 Cal.App.4th 1480 (Ochoa) discussing the sufficiency of
expert declarations on causation is helpful. The plaintiff in
Ochoa contended she suffered aggravated respiratory problems
due to a methane leak in her new home. (Id. at pp. 1482–1483.)
Defendant moved for summary judgment on lack of causation
and presented the declarations of two expert witness, a
toxicologist and a pulmonary specialist. (Id. at p. 1483.) As the
court summarized, the toxicologist “declared that ‘[e]xposure to
methane gas has no direct toxic respiratory effect, short of
asphyxiation.’ Thus, in his opinion there cannot be a causal link
between appellant’s alleged respiratory injuries and exposure to
methane gas.” (Id. at p. 1486.) The pulmonary care medical
specialist “declared that ‘exposure to methane gas and/or the
odorants added to methane gas would not have caused, nor have
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aggravated, plaintiff’s allergies nor her asthma condition.’ He
also declared that her flu-like symptoms could not have been
caused by methane gas exposure. It was his opinion that the
aggravation of her respiratory condition was ‘most likely due to
her move from an apartment, where there was little adjacent
plant life, to her present home in Merced.’ ” (Id. at p. 1487.)
The Court of Appeal held “the trial court correctly
concluded that PG&E provided competent declaratory evidence
showing that methane gas cannot cause or exacerbate the
ailments from which appellant suffered” and so shifted the
burden to appellant to produce evidence sufficient to create a
triable issue of fact on causation.” (Ochoa, supra, 61 Cal.App.4th
at p. 1488.) The same is true here.
IV. Dr. Walker Was Not Qualified as an Expert and So His
Declaration Did Not Create Triable Issues of Material Fact
Concerning Causation.
Kent contends that even if Dr. Richeimer’s declaration was
evidence negating causation, the declaration of his expert Dr.
Walker created a triable issue of material fact as to the causation
of Kent’s thumb injuries. Kent acknowledges that his expert’s
declaration was conclusory, but contends it was no more
conclusory than Dr. Richeimer’s declaration, with an important
difference being that Dr. Walker’s declaration must be construed
liberally while Dr. Richeimer’s declaration must be construed
strictly. We do not agree that Richeimer’s three and a-half page,
21-paragraph declaration is as conclusory as Dr. Walker’s one-
page, seven-paragraph declaration, but the content or length of
Walker’s declaration is not the point. The trial court found Kent
failed to establish that Dr. Walker was, in fact, an expert. The
court explained: “Dr. Walker’s declaration provides that he is a
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medical doctor licensed in California, but does not provide
information that qualifies Dr. Walker to opine on Dr. Wu’s
conduct. . . . Dr. Walker does not state what kind of medicine he
practices and plaintiff has not presented his resume.”
The record on appeal suggests Kent never filed Dr.
Walker’s resume with the court; the only copy in the clerk’s
transcript is found as an exhibit to a declaration in support of
Wu’s reply brief. The declaration states that Wu received the
resume shortly before his reply brief was due. The court’s
comments indicate the court did not consider this late-served
(and apparently unfiled) resume. We see no abuse of discretion
in this decision.
Had the court considered the resume, there can be little
doubt the court’s conclusion would have been the same. The copy
of the resume sent to Wu is woefully out of date. It is a 2010
version of the resume and shows that Walker’s medical license
would expire in October 2012.5 There is no indication of Dr.
Walker’s training or work experience in the eight years between
the date of his resume and the filing of his declaration.
V. The Denial of the Motion for a New Trial Was Proper for the
Same Reasons the Grant of Summary Judgment Was
Proper.
Kent contends the trial court erred in denying his motion
for a new trial. The motion was made on the grounds that Wu
did not meet his initial burden on summary judgment and that
5
Dr. Walker stated in his declaration that he is a “medical
doctor licensed by the State of California” but did not provide
supporting details such as his license number or its expiration
date.
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there was a triable issue of fact. He contends the denial was
wrong for the same reasons the grant of summary judgment was
wrong.
Even though it is the duty of the appellate court in
reviewing the denial of a new trial motion to review the entire
record, “an appellant has a duty to make a ‘cognizable argument
on appeal as to why the trial court abused its discretion in
denying the motions.’ [Citation.] Mere repetition of the
arguments made in support of the motion in the trial court is not
sufficient.” (Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277.)
Given Kent’s cursory argument, we will simply state the
trial court’s denial of the new trial motion was correct for the
same reasons the grant of summary judgment was correct. Dr.
Richeimer’s declaration was sufficient evidence to negate
causation, Dr. Walker was not qualified to testify as an expert,
and Kent did not clearly raise the theory of self-evident injury in
his complaint or in opposition to summary judgment.
The only new argument Kent raises concerns the trial
court’s finding that the proof of service of the notice of intent to
file a new trial motion was defective. We agree with Kent the
trial court misread the amended proof of service. The document,
dated March 29, 2109, states the notice was mailed by Daniel
Cabilo on March 28, 2019. However, this is relevant only if we
were to decline to decide the motion based on untimely service.
We do not do so.
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DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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