Evidentiary — continued from Page 54
advised to prepare supporting declara- tions from plaintiff and any witnesses before filing the lawsuit. The complaint (sans a prayer for punitive damages) should be carefully drawn, incorporating specific facts which justify a finding of “fraud, oppression or malice,” as those terms are defined in Civil Code section 3294. Any discovery which can be done that may yield evidence in support the claims set forth in the complaint should be served at the earliest possible time. Contention interrogatories should be propounded in an effort to discover what the defense position is likely to be in opposition to the motion. At the initial case-management con-
ference, the trial court should be put on notice that a motion to amend is antici- pated so that an appropriate date can be set for trial that will afford plaintiff ’s counsel the opportunity to make her motion. Once the initial trial date is set, the deadline for filing the motion should be calendared.
Evidentiary issues before trial
•Motions for summary judgment It is foolhardy to file a medical-
malpractice complaint without first having
an expert onboard who supports plain- tiff ’s position. For this reason, motions for summary judgment are almost never granted, because there is invariably a tri- able issue of fact with respect to liability or causation. Nevertheless, defense coun- sel rarely miss the opportunity to bill the malpractice carrier for the preparation of such a motion and to discover the identi- ty of plaintiff ’s expert before the date of the expert-witness exchange. The evidentiary rules for summary
judgment are no different than they are in other tort cases. However, armed with an expert declaration in opposition to the motion, thus ensuring its defeat, plaintiffs’ counsel often do not seek to enforce the rules of evidence. Garibay v. Hemmat (2008) 161 Cal.App.4th 735, ended business as usual for defendants seeking summary judgment. Traditionally, defendant filed the motion with a supporting declaration of an expert indicating that he had read the medical records, reviewed depositions and, on that basis, concluded that defen- dant had not violated the standard of care and/or that the defendant did not cause the injury of which plaintiff complained. The medical records and
depositions on which the expert relied typically were not attached as exhibits to the motion. That was the case in Garibay. The Court of Appeal in Garibay held
that defendant’s expert did not have per- sonal knowledge of the facts of the case; his opinion depended on the medical records. The court noted that, while the medical records are hearsay, they can be admitted under the business records’ exception once they are properly authen- ticated. However, defendant didn’t attach any records to the motion. Without those hospital records, and without testimony providing for the authentication of such records, [the expert’s] declaration had no eviden- tiary basis. Consequently his medical opinion on whether [defendant] met the standard of care had no evidentiary value. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493). “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. (Evid. Code § 801, subd. (a).) Even so, the expert opinion may not be based on assumptions of fact that
See Evidentiary, Page 58
Te defense has an appellate department. Now, so do you.
“When defense counsel threatens to appeal, just tell them you have to review the mater with your appellate department. Ten call me.”
“Steve has done our appellate and motion work for a decade. His bating average is well over 900.” Phil Michels, Michels & Watkins, CAALA Trial Lawyer of the Year (2003) • Member ABOTA
Steven B. Stevens Certified Specialist in Appellate Law, State Bar of California Board of Legal Specialization
Certified in Medical Professional Liability Law • CAALA Appellate Lawyer of the Year (2001) 28 Years as Plaintiff’s Counsel
Appeals • Writs • Law & Motion 310-474-3474 •
SBStevens@TeStevensFirm.com 56 — The Advocate Magazine FEBRUARY 2012
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