Filed 4/24/20 Orlando v. Nelson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ROBERT J. ORLANDO,

Plaintiff and Appellant,

v.

RUSSELL W. NELSON et al.,

Defendants and

Respondents. B294663

(Los Angeles County

Super. Ct. No.

BC569257)

APPEAL from a judgment of the Superior Court of Los Angeles County, Randolph M. Hammock, Judge. Affirmed.

Gomez Law Group and Alvin M. Gomez for Plaintiff and Appellant.

Schmid & Voiles, Denise H. Greer, Bradley C. Clark and Julia E. Murray for Defendants and Respondents.

Appellant Robert J. Orlando challenges the trial court’s grant of summary judgment in his medical malpractice suit against respondents, Dr. Russell W. Nelson and Nelson Spine Institute. Appellant contends the court erred in striking portions of an expert declaration he submitted in opposition to respondents’ motion. He argues that the expert’s declaration was both admissible and, if liberally construed, sufficient to defeat summary judgment. Finding no error, we affirm.

BACKGROUND

A. Appellant’s Complaint
B.
In January 2011, Dr. Nelson performed a spinal-fusion surgery on appellant. In 2015, appellant filed a complaint against respondents, asserting one cause of action for medical malpractice. The complaint alleged respondents had negligently treated appellant and had failed to obtain his informed consent, causing him a host of injuries, including “[e]xogenous bony overgrowth” and “nerve root compression.” In a subsequent response to a special interrogatory, appellant asserted that the procedure itself was inappropriate and that during the procedure, Dr. Nelson used an inappropriate substance called BMP 7, instead of another substance, BMP-2. Appellant claimed Dr. Nelson had not discussed the use of BMP-7 with appellant and had represented he would use BMP-2.

C. Respondent’s Motion for Summary Judgment and the Parties’ Initial Expert Declarations
D.
Respondents moved for summary judgment and provided the declaration of Dr. Mark J. Spoonamore, an orthopedic surgeon. As relevant here, Dr. Spoonamore opined that appellant’s surgery was necessary and that Dr. Nelson had performed it in accordance with the standard of care, including his use of BMP-7. While some of appellant’s medical records suggested he had bone overgrowth and “lumbar stenosis” some time after the surgery, Dr. Spoonamore stated Dr. Nelson had “safely perform[ed] the procedure without any sign of nerve damage.”

Appellant opposed respondents’ motion and provided the declaration of Dr. Aaron Filler, a neurosurgeon. Dr. Filler opined, consistent with appellant’s claims, that appellant’s surgery was unnecessary and that Dr. Nelson should not have used BMP-7. Dr. Filler also opined that Dr. Nelson should have been assisted by a neurosurgeon during the procedure. Respondents objected to Dr. Filler’s declaration on numerous grounds.

Before the hearing on respondents’ motion for summary judgment, the trial court issued a tentative ruling sustaining some of respondents’ objections to Dr. Filler’s declaration and granting their motion. Both in the tentative ruling and in the subsequent hearing, the court identified what it considered to be major substantive flaws in Dr. Filler’s declaration. The court found his opinions too conclusory. It stated that Dr. Filler had not explained the difference between BMP-2 and BMP-7 and had failed to support his conclusions concerning the injuries he claimed appellant had suffered. Because appellant’s counsel assured the court he could remedy the relevant flaws, the court agreed to continue the hearing on the motion to allow him to file a new declaration.

E. Dr. Filler’s Second Declaration
F.
Appellant then filed a second declaration by Dr. Filler. In this second declaration, Dr. Filler provided additional detail on the use of BMP-7 and BMP-2 and the differences between them. He stated that while BMP-2 was useful “in certain very limited circumstances,” studies had shown that BMP-7 was “NEVER helpful,” because “it increase[d] the rate of failed fusions and ha[d] similar or greater complication rates to BMP-2.” According to Dr. Filler, one risk BMP-7 carried was causing bone overgrowth, but he did not explain whether BMP-2 carried a similar risk.

In many other respects, Dr. Filler’s declaration was substantially similar to his first. Regarding appellant’s injuries and their causes, the second declaration provided:

“Use of BMP-2 Instead of BMP-7 Less Severe Consequences.

“30. Based on my education, training and years of experience, it is my opinion . . . that the use of BMP-2 instead of BMP-7 . . . would have resulted in less severe consequences for [appellant]’s health . . . .

“[¶] . . . [¶]

“Assistance of Neurosurgeon then no nerve injury.

“32. Based on my education, training and years of experience, it is my opinion . . . that would Dr. Nelson have been assisted by a neurosurgeon as opposed to a nurse, [appellant] . . . would not have suffered the nerve injury that he did in fact suffer during surgery. [A] [n]eurosurgeon would have used MR Neurography, an imaging for use of which a nurse simply would not be qualified. MR Neurography would have provided additional guidance during the surgery and would have prevented the nerve injury. This nerve injury was entirely preventable would Dr. Nelson have followed standards and practice and was assisted by a qualified neurosurgeon.

“BMP-7 Caused Bone Growth that caused irreversible neuropathy and neuritis.

“33. Based on my education, training and years of experience, it is my opinion . . . [that] the use of the BMP-7 caused the bone to grow into and around the course of major nerve elements which has caused [appellant] to suffer from medical conditions known as neuropathy and neuritis that cannot be expected to be reversed.”

G. Hearing and Ruling
H.
Respondents objected to various portions of Dr. Filler’s second declaration on numerous grounds. At the hearing on respondents’ motion for summary judgment, the trial court stated that Dr. Filler’s second declaration did not address many of the problems the court had identified, and in some respects, it was “almost like he ignored me.” After the hearing, the court sustained three of respondents’ objections to the second declaration, striking paragraphs 30, 32, and 33 (quoted above), and granted summary judgment for respondents. It reasoned that Dr. Filler had failed to support his conclusions on appellant’s injuries and their causes. This appeal followed.

DISCUSSION

“‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.”’” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Relying on the stricken portions of Dr. Filler’s second declaration, appellant contends he has established triable issues of fact as to all elements of his claims. He contends the court erred in excluding those parts of the declaration.

A. Principles Governing Summary Judgment and the Non-Movant’s Expert Declarations
B.
“Summary judgment is appropriate only where ‘no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “‘“We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”’” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Ibid.)

However, courts may not “relax the rules of evidence in determining the admissibility of an opposing declaration.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 (Bozzi).) “The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment.” (Ibid.) “Only admissible evidence is liberally construed in deciding whether there is a triable issue.” (Ibid., italics omitted; accord, Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 57 [“Courts liberally construe declarations submitted in opposition to summary adjudication only to the extent the declarations are admissible”].)

“‘[A] properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.’” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 (Sanchez).) But an expert “does not possess a carte blanche to express any opinion within the area of expertise.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (Jennings).) For example, an expert’s opinion may not be based on factual assumptions lacking evidentiary support or on speculation or conjecture. (Ibid.) Similarly, an expert’s purely conclusory opinion should be excluded because it would “not assist the jury to determine what occurred, but instead [would] supplant[] the jury by declaring what occurred.” (Id. at 1118.) In attempting to prove the element of causation, “the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.’” (Ibid., italics omitted; see also id. at 1220, fn. 12 [“an expert who expresses a conclusion supported only by a statement telling the jury (in essence), ‘Trust me, I’m an expert, and it makes sense to me’ has provided no grist for the jury’s decisional mill. Instead, such a conclusion leaves to the jury only a weighing of the curricula vitae of the opposing experts”].)

Under the weight of authority, we review a trial court’s evidentiary rulings in summary judgment proceedings for abuse of discretion. (LAOSD Asbestos Cases (2020) 44 Cal.App.5th 475, 485.) The party challenging a trial court’s evidentiary ruling has the burden to establish such an abuse, which we will find only if the trial court’s order exceeds the bounds of reason. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)

C. Analysis
D.
The trial court did not abuse its discretion in striking portions of Dr. Filler’s second declaration. In the relevant paragraphs of the declaration, Dr. Filler suggested Dr. Nelson’s procedure injured appellant in two ways: (1) Dr. Nelson caused appellant “nerve injury” during the surgery because he was unassisted by a neurosurgeon; and (2) the use of BMP-7 caused bone overgrowth into appellant’s nervous system. Dr. Filler’s opinions about each of these alleged injuries were conclusory and not properly supported.

As to appellant’s unspecified nerve injury during surgery, Dr. Filler’s declaration stated only that had Dr. Nelson been assisted by a neurosurgeon, appellant “would not have suffered the nerve injury that he did in fact suffer during surgery” because the neurosurgeon’s use of “MR Neurography would have provided additional guidance during the surgery . . . .” Initially, appellant has not pointed to, and we are unaware of, any evidence that he actually suffered a nerve injury during his surgery. Dr. Filler simply assumed the fact of such an injury, without providing a factual predicate, despite Dr. Spoonamore’s opinion that Dr. Nelson “safely perform[ed] the procedure without any sign of nerve damage.” Appellant points to a post-surgery medical record suggesting he had “lumbar stenosis.” But without an expert’s explanation of this term, this document could not have supported Dr. Filler’s opinion. (See People v. Davis (2013) 57 Cal.4th 353, 362 [absent expert testimony, chemical name of substance was insufficient to prove it contained controlled substance because the matter was “‘not within the common knowledge of laymen’”].) Thus, Dr. Filler’s opinion on the causation of appellant’s “nerve injury” lacked foundation and was inadmissible. (See Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1235 (Casey) [exclusion of expert’s opinion that defendant had exposed plaintiff to asbestos was not abuse of discretion where expert simply assumed dust and debris plaintiff had encountered contained asbestos].)

Additionally, Dr. Filler’s opinion in this regard was conclusory. He did not state what kind of nerve injury appellant allegedly suffered during the surgery, did not describe how it occurred, and did not explain his conclusion that the “additional guidance” of MR Neurography would have prevented it. The reader was left to speculate how the undescribed additional guidance would have prevented the unspecified injury and was impermissibly invited simply to trust that Dr. Filler had reached the right conclusion. (See Jennings, supra, 114 Cal.App.4th at 1118; cf. Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1116 [expert declaration on causation too conclusory where it stated only that if premises had been altered as expert suggested, “‘the assault probably would not have occurred,’” even though it was unknown how or when assailant gained entry]; Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781-782 (Fernandez) [no triable issue where expert declaration stated simply that defendant’s failure to obtain X-ray and to recommend surgery caused plaintiff’s injury; the expert “offered no ‘reasoned explanation connecting the factual predicates to the ultimate conclusion’” (quoting Sanchez, supra, 8 Cal.App.5th at 156)].)

Dr. Filler’s opinion that BMP-7 caused appellant’s bone overgrowth was similarly conclusory. He stated simply, “[T]he use of the BMP 7 caused the bone to grow into and around the course of major nerve elements . . . .” Here, too, Dr. Filler’s declaration impermissibly invited the reader to take his conclusion on faith, rather than explain why this conclusion was correct. (Cf. Fernandez, supra, 31 Cal.App.5th at 781; Jennings, supra, 114 Cal.App.4th at 1120 [expert opinion properly excluded at trial as too conclusory; expert opined that contaminated medical instrument, left inside plaintiff’s abdominal cavity during surgery, caused infection in different part of abdomen, explaining, “‘It just sort of makes sense. We have that [instrument] and [it’s] contaminated, he’s infected’”].)

Appellant notes Dr. Filler’s statement that BMP 7 carried a risk of causing bone overgrowth. But that something carries a risk of harm is insufficient to show that it caused that harm in a particular case. (See Jennings, supra, 114 Cal.App.4th at 1118 [expert opinion must show causal connection was more likely than not; mere possibility is not enough].) In his reply brief, appellant attempts to support Dr. Filler’s opinion by pointing to records showing he was diagnosed with bone overgrowth some time after Dr. Nelson’s surgery. This effort misses the point. Even if the discovery of appellant’s condition at some point after the surgery were sufficient to support his conclusion that use of BMP-7 caused appellant’s injury, Dr. Filler would still be required to provide a reasoned explanation connecting this factual predicate to his conclusion. He could not simply provide a barebones conclusion that “the use of the BMP 7 caused the bone to grow . . . .” (See Fernandez, supra, 31 Cal.App.5th at 782 [courts may not infer explanation for expert’s purely conclusory opinion based on record; “[d]oing so would be the antithesis of the principle that an expert opinion on causation must include ‘a reasoned explanation connecting the factual predicates to the ultimate conclusion’”].)

In stricken paragraph 30 of his declaration, Dr. Filler asserted “that the use of BMP-2 instead of BMP-7 . . . would have resulted in less severe consequences for [appellant’s] health.” Presumably, these consequences referred to the claim of bone overgrowth — the only injury Dr. Filler asserted appellant suffered due to the use of BMP-7. This opinion is not only purely conclusory but also lacks a factual basis, as Dr. Filler’s declaration did not establish that BMP-7 carried a higher risk of bone overgrowth; rather, Dr. Filler stated that as compared to BMP-2, BMP-7 had “similar or greater” complication rates. There was therefore no foundation for the opinion Dr. Filler expressed in this paragraph. (See Casey, supra, 206 Cal.App.4th at 1235.)

In support of his argument that Dr. Filler’s opinions were admissible, appellant cites Powell v. Kleinman (2007) 151 Cal. App. 4th 112 (Powell) and Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173 (Garrett). These cases are distinguishable. In Powell, a plaintiff claimed the defendants had failed to diagnose and treat an injury to his spinal cord in a timely manner. (Powell, supra, at 115.) As relevant here, the plaintiff provided an expert declaration, opining that one of the defendants should have tested the plaintiff for spinal-cord compression, rather than simply assume a prior hospital had ruled it out. (Id. at 118-119.) The trial court considered this opinion conclusory and excluded it for lack of a reasoned explanation. (Id. at 127.) The Court of Appeal disagreed, noting the expert’s additional explanation that the standard of care required physicians to test patients with plaintiff’s symptoms for spinal compression “on an emergent basis,” because immediate referral for surgical intervention would be required if the spinal cord was compromised. (Id. at 118, 119, 128.) In Garrett, the plaintiff sued a medical prosthesis manufacturer for design defect after his femoral prosthesis fractured. (Garrett, supra, at 178-179.) In opposing the manufacturer’s summary judgment motion, the plaintiff submitted the declaration of an expert metallurgist who, after conducting extensive testing of the prosthetic device, determined the fractured part of the prosthesis was insufficiently hard under specific industry standards. (Id. at 179.) After the trial court excluded the expert’s opinion because he failed to provide detailed information on his testing methods, the Court of Appeal reversed, holding that the absence of the expert’s specific methodology did not render his declaration too conclusory. (Id. at 188.)

In both Powell and Garrett, the experts explained the bases for their conclusions in a way that, while not as detailed as it could have been, would have permitted a fact finder to assess their reasoning, in addition to their credentials. Neither case involved an expert’s purely conclusory causation opinion, similar to Dr. Filler’s opinions that MR Neurography would have prevented an unspecified nerve injury during surgery, that BMP-7 caused appellant’s bone overgrowth, and that use of BMP-2 would have achieved more favorable results. In short, the trial court did not abuse its discretion in striking the relevant portions of Dr. Filler’s declaration. (See Bozzi, supra, 186 Cal.App.4th at 761; Jennings, supra, 114 Cal.App.4th at 1118; Casey, supra, 206 Cal.App.4th at 1235.)

It is undisputed that without the stricken portions of Dr. Filler’s declaration, appellant could not carry his burden to establish a triable issue on the element of causation. Moreover, even were we to consider Dr. Filler’s opinions on the merits, applying liberal construction, we would conclude they were insufficient to create a triable issue of fact, given the complete absence of meaningful explanation in support. (See Fernandez, supra, 31 Cal.App.5th at 782 [liberal construction does not “eliminate the need for some form of ‘reasoned explanation,’ and it remains the case that any inferences must ‘reasonably be derived from’ the declaration”].) Accordingly, the trial court did not err in granting summary judgment for respondents.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J