Filed 9/21/20 McCrary v. Tran CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sutter)

—-

GREGORY McCRARY,

Plaintiff and Appellant,

v.

LOAN KIM TRAN et al.,

Defendants and Respondents.

C088924

(Super. Ct. No. CVCS1600000614)

Plaintiff Gregory McCrary sued defendants Dr. Loan Kim Tran and her optometry practice, Butte View Optometry, LLC, (collectively defendants) alleging steroid drops Dr. Tran prescribed to him caused a corneal perforation in one of his eyes. Defendants moved for summary judgment arguing the undisputed material facts established that nothing Dr. Tran did or allegedly failed to do was a substantial factor in causing McCrary’s corneal perforation. In making this argument, defendants relied on the expert deposition testimony of McCrary’s treating physician and the declaration of retained experts in the optometry and ophthalmology fields. McCrary’s opposition to defendants’ motion relied on the declaration of an expert in the ophthalmology field, in which the expert disputed defendants’ experts’ opinions.

The court excluded McCrary’s expert’s declaration on several grounds and granted defendants’ motion for summary judgment finding McCrary failed to proffer admissible evidence disputing defendants’ proffer. McCrary appeals arguing the court erred by excluding his expert’s declaration, and thus ignoring evidence providing the basis for disputed material facts. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because McCrary’s appellate claim pertains to the court’s evidentiary ruling only, we limit our factual recitation to facts relevant to that claim.

Attached to McCrary’s opposition to defendants’ motion for summary judgment was the declaration of an expert in the ophthalmologist field who specializes in cataract surgery. The expert declared he had been retained to give a medical opinion in “regards to whether Defendant’s Summary Judgment should be granted” and that for “Dr. Tran to prove Summary Judgment, she must make a showing that no triable issue of material fact existed in regards to her negligent treatment of Mr. McCrary.” The expert did “not believe that summary judgment should be granted: There are multiple issues that should cause this court to find that there are triable issues in regards to Dr. Tran’s professional responsibility to act on behalf of her patient Mr. McCrary.”

In particular, the expert thought Dr. Tran had an obligation to see McCrary in a timely fashion after he called complaining of eye pain in the days after she prescribed steroid drops. This is because “[t]here is a significant amount of literature that documents that steroids are known to cause corneal thinning and perforation, even in a normal patient, let alone patients with rheumatoid arthritis.”

The expert disagreed with McCrary’s treating physician that McCrary’s corneal perforation was caused by his rheumatoid arthritis and that the steroid drops had nothing to do with the perforation. The expert disagreed because McCrary used the drops only in the eye with the perforation, indicating the corneal thinning was attributed to the drops and not rheumatoid arthritis, which would cause corneal thinning in both eyes. The expert further declared his opinion about the proper reading of McCrary’s treating physician’s notes and deposition testimony.

The expert concluded that “it is my medical opinion that if Mr. McCrary did in fact call Dr. Tran complaining of pain shortly after being prescribed the topical steroids, Dr. Tran had an obligation to see Mr. McCrary in a timely fashion to rule out the possibility of a corneal perforation. Dr. Tran had an obligation to see Mr. McCrary because it is well known that topical steroids can cause corneal thinning and perforation in a normal patient, let alone a patient with rheumatoid arthritis. Not only was Mr. McCrary not seen by Dr. Tran in a timely fashion when notified of his increased pain, he was instructed to continue the topical steroids until his scheduled visit one week later, at which time the week[-]long corneal perforation was confirmed. [¶] Also, in my medical opinion, from the documents that I have read and based on a reasonable degree of medical probability, the prescribed topical steroids prescribed by Dr. Tran played a role in Mr. McCrary’s corneal perforation.”

Defendants objected to the admission of this declaration on several grounds, including that the expert’s opinion was conclusory and lacked reasoning. The court agreed and excluded the declaration.

DISCUSSION

McCrary contends the court erred by excluding his expert’s declaration disputing the evidence proffered by defendants. Specifically, McCrary argues his expert’s opinion was not conclusory when he declared Dr. Tran’s failure to promptly see McCrary after McCrary complained of eye pain constituted negligence and caused McCrary’s injury. We disagree.

“An expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial in accordance with Evidence Code section 720. An expert may testify to an opinion on a subject ‘that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Evid. Code, § 801, subd. (a).)” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) “Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.” (Ibid.) In a summary judgment proceeding, an expert’s opinion may be rejected if it is conclusory, speculative, without foundation, or stated without sufficient certainty. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779; Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155-156.)

An “expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 [plaintiff’s experts in medical malpractice case did not create material dispute by stating it was “ ‘more probabl[e] than not’ ” that plaintiff’s injury resulted from trauma during surgery without explanation or facts other than assumed facts for which no evidence was presented].) “When the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party’s claims, the opposing party’s burden is to produce a competent expert declaration to the contrary.” (Bozzi v. Nordstrom, Inc., supra, 186 Cal.App.4th at pp. 761-762.)

McCrary appears to attack the court’s ruling regarding the expert’s opinion that Dr. Tran was negligent in not seeing McCrary in a timely fashion after he complained of eye pain following the use of prescription steroid drops known to cause corneal thinning and perforation. McCrary does not argue the court erred by excluding the other portions of the expert’s declaration.

The problem with the expert’s opinion McCrary argues should have been admitted is that the expert did not provide context to his conclusions by pointing to the standard of care applicable in these situations or the facts specific to McCrary’s case. McCrary’s expert’s opinion was predicated on the standard that “if” McCrary called Dr. Tran complaining of pain in “the following days after being prescribed steroid eyedrops,” then she should have “timely” examined his eye. The expert did not describe what it means to be “timely” in this context or what happened to McCrary’s eye due to the negligent delay. Instead, the expert simply concludes Dr. Tran was not timely by waiting until McCrary’s appointment a week later “at which time the week[-]long corneal perforation was confirmed.”

The expert’s opinion is similarly lacking factual context. The expert does not consider the facts leading to McCrary’s use of the steroid drops, including McCrary’s reasons for consulting Dr. Tran about his eye or Dr. Tran’s reasons for prescribing the steroid drops. These considerations appear relevant to whether McCrary’s subsequent complaints of eye pain warranted immediate consultation, yet the expert does not take them into consideration, let alone explain the significance or insignificance.

The omission of facts and medical standards from the declaration demonstrates the expert’s opinion was rendered without a reasoned explanation and foundation, making the opinion conclusory. (See Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 510.) Accordingly, the trial court did not abuse its discretion by excluding McCrary’s expert’s declaration from evidence.

DISPOSITION

The judgment is affirmed. Defendants are awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Murray, J.