Case Number: BC499879    Hearing Date: September 12, 2014    Dept: 91

The Motion for Summary Judgment by Defendant, Akemi Kawaguchi, M.D., filed on 5/6/14 is DENIED. Defendant has not established that she is entitled to judgment in Defendant’s favor based on the material facts proffered, which remain in dispute. Cal Code Civ Procedure § 437c (p)(2).

Proof of breach of the standard of care and whether conduct caused Plaintiff’s injury requires an expert declaration. Landeros v. Flood (1976) 17 Cal.3d 399, 410. Conjecture or speculation is not sufficient; competent expert testimony is required. Jones v. Ortho Pharm. Corp., 163 Cal. App. 3d 396, 402 (Cal. App. 2d Dist. 1985).

Causation must be established within a reasonable medical probability based upon competent medical testimony. Jones v. Ortho Pharm. Corp., 163 Cal. App. 3d 396, 402-403 (Cal. App. 2d Dist. 1985). A “possibility” of causation is not enough. The expert must provide a “reasoned explanation” showing that it is more probable than not that the negligent act was a cause-in-fact of the Plaintiff’s injury. Jennings v. Palomar Pomerado Health Systems, Inc., 114 Cal. App. 4th 1108, 1118 (Cal. App. 4th Dist. 2003).

Defendant’s evidentiary objections are based primarily on the argument that Plaintiff’s expert did not declare any of his opinions were made “within a reasonable medical probability” as if that particular language is required for admissibility of an expert’s declaration. However, as explained by Jennings, what is required is a reasoned explanation showing why the facts establish cause-in-fact.

The declaration of Plaintiff’s expert, Dr. Stein, is supported by reasoned explanation and does not describe “theoretical possibilities.” He asserts that failure to anchor Plaintiff’s remaining testicle placed Plaintiff at “high risk of losing it” and put Plaintiff “at a high risk of infertility and other related problems.” Stein, ¶ 9. He opines that Dr. Kawaguchi should have anchored the right testicle to prevent future testicular torsion. His opinions with regard to causation are also supported by reasoned explanation. ¶ 12.

Dr. Stein’s declaration is sufficient if it supports an inference that “in the absence of Defendant’s negligence, there was a reasonable medical probability the Plaintiff would have obtained a better result.” Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304 states that “the element of causation is satisfied when a plaintiff produces sufficient evidence ‘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.” Id. at 1314-1315. Dr. Stein’s declaration meets this test.

Defendant’s claim that the expert declaration is not admissible as the opinions are not supported by factual basis is not well taken. “Excruciating detail” is not required. Hanson v. Grode, 76 Cal. App. 4th 601, 608 (Cal.App.2d Dist. 1999). So long as the declaration is not “theoretical” and asserts specific breaches and cause-in-fact, Plaintiff is entitled to all reasonable inferences to be derived therefrom. Hanson at 607-608. Accordingly, all of Defendant’s objections are OVERRULED.

Defendant argues in Reply that Plaintiff has not established that he has actually suffered damage. Reply 4:16-17. Whether or not Plaintiff actually suffered damage is not an element that Defendant sought to adjudicate in the moving papers. Defendant raised the elements of breach and causation. The damage issue is belatedly raised.

The motion is DENIED as triable issues of fact remain on the issues of breach and causation.

Whether or not Plaintiff suffered “any problem or complication from the surgery” remains in dispute. Plaintiff still has to undergo another surgery to anchor his testicle, which will require opening the original scar. Fact 15 and evidence cited by Plaintiff in opposition.

Whether Defendant’s conduct complied with the standard of care is disputed based on the competing declarations of each party’s expert. Fact 16, Fact 19, Fact 20, and evidence cited by Plaintiff in opposition.

Each party disputes whether or not Defendant’s conduct caused or contributed to the injury. Fact 21, 24 and evidence cited therein.