Mark Carr v. Bret Davis, MD
Case No: 18CV03302
Hearing Date: Tue Apr 23, 2019 9:30

Nature of Proceedings: Motion Summary Judgment

Motion of Defendant for Summary Judgment

ATTORNEYS:

For Plaintiff Mark Carr: Jordan D. Hankey

For Defendant Bret Davis, M.D.: William Clinkenbeard, Cathy Anderson, Clinkenbeard, Ramsey, Spackman & Clark, LLP

RULING: For the reasons set forth herein, the motion of defendant Bret Davis, M.D., for summary judgment is denied.

Background:

On July 2, 2018, plaintiff Mark Carr filed his complaint in this action asserting a single cause of action for professional negligence against defendant Bret Davis, M.D. The complaint alleges that Dr. Davis breached the applicable standard of care by failing to recommend or obtain a biopsy, causing delay and resulting injury to Carr. (Plaintiff’s Response Separate Statement [PSS], undisputed facts 1-3.)

On January 31, 2019, Dr. Davis filed this motion for summary judgment. The motion is opposed by Carr.

Analysis:

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

Regardless of whether Dr. Davis has met his initial burden on summary judgment, it is clear that there are triable issues of fact which preclude summary judgment. The specific medical condition that led to the medical treatment at issue was a primary squamous cell carcinoma. (PSS, undisputed fact 14.) According to Dr. Davis’s expert, Brittney DeClerck, M.D., there is no way to determine retrospectively that the prognosis or ultimate outcome in Carr’s case would have been any different had the treatment procedures been performed as soon as possible after Carr was seen and examined by Dr. Davis on April 11, 2017. (Defendant’s Separate Statement [DSS], fact 40; DeClerck decl., ¶ 15.) According to Carr’s expert, Stuart Shear, M.D., concluded that Dr. Davis “was responsible for the delay in therapy which caused the tumor to reach the stage of both neural and bone involvement and the ensuing disfigurement to Plaintiff’s appearance” and the disfigurement “would not have been so extensive had Defendant complied with the applicable standards of care when rendering treatment to Plaintiff.” (Shear decl., ¶¶ 13, 14.)

In reply, Davis argues that Dr. Shear provides no reasoned explanation for his opinions and objects to Dr. Shear’s declaration on the same basis. Plaintiff’s “expert’s declaration is to be liberally construed. [Citation.] We must resolve ‘any doubts as to the propriety of granting the motion in favor of the plaintiff. [Citation.]’ [Citation.] The requisite of a detailed, reasoned explanation for expert opinions applies to ‘expert declarations in support of summary judgment,’ not to expert declarations in opposition to summary judgment. [Citation.] This is because a defendant moving for summary judgment bears the heavy ‘“burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” [Citation.]’ [Citation.] On the other hand, a plaintiff opposing a motion for summary judgment need only raise a triable issue of fact.” (Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4th 1320, 1332-1333; accord, Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125.)

For the same reasons, the Court overrules Davis’s objections numbers 5 through 8. The Court does not rule on the remaining objections as unnecessary to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)

Plaintiff Carr has raised a triable issue of fact as to the causation issue upon which defendant Dr. Davis asserts summary judgment. Defendant’s motion for summary judgment will therefore be denied.