Combating — continued from Page 26 A Structured
Settlement requires careful planning and experience.
Appeal reversed the trial court, noting that plaintiff’s expert had produced enough evidence that plaintiff suffered independent injuries from the medical malpractice. In doing so, the court explained what plaintiff’s expert had to do in order to overcome a complaint about competing possibilities of injury:
Dr. Gabriel did not testify that it
Michael J. Pickett, CSSC Certified
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was possible that the subacute and acute phases caused brain damage. He testified that they did cause brain dam- age. He did not testify that it was possi- ble that the subacute and acute phases were substantial factors in causing plaintiff’s brain damage. He testified that they were substantial factors in causing the outcome. To reason, as did the trial court,
that based on plaintiff’s evidence, “[i]t is entirely possible ... that the brain damage to [plaintiff] had occurred prior to the hypoxic event ...” is simply not justified or supported by Dr. Gabriel’s testimony. Dr. Gabriel identi- fied specific brain damage on plaintiff’s MRI study which was not caused during the first trimester, but rather, was caused by trauma, and testified that the events surrounding the labor and deliv- ery were substantial factors in causing plaintiff’s condition.
(Id. at 1318.) [I]n the absence of factual circum- stances of probability understandable to
a jury there must be some scientific tes- timony that can be interpreted as an inference of hypothetical probability before we can allow a jury to speculate upon the rights of citizens. [¶] .... [O]nce the theory of causation leaves the realm of lay knowledge for esoteric scientific theories, the scientific theory must be more than a possibility to the scientists who created it.
(Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 403, italics added.) (Id. at 1320.) Here, testimony about the statisti-
cal risk or likelihood of brain damage was not necessary to a prima facie case. Causation was shown directly. Dr. Gabriel testified the brain damage was the result of discrete, known factors, not possibly the consequence of myriad variables. ...
(Id. at 1320.) [T]he testimony of plaintiff’s
expert witness, viewed in its most favor- able light, was unequivocal. Dr. Gabriel concluded that defendants’ negligent acts, while not the sole cause of plain- tiff’s brain damage, were clearly a sub- stantial factor in causing them. Such testimony was not uncertain or specula- tive; and it was sufficient to present a prima facie case of causation.”
(Id. at 1321.) See Combating, Page 30
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800.326.1078Serving the State Bar since 1985 28— The Advocate Magazine JULY 2011
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