Judge Theresa M. Traber, Case Number: 19STCV42457, Date: 2023-10-25 Tentative Ruling

Judge: Theresa M. Traber, Case: 19STCV42457, Date: 2023-10-25 Tentative Ruling

Case Number: 19STCV42457 Hearing Date: December 15, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: December 15, 2023 TRIAL DATE: January 16, 2024

CASE: Kimberly Clayborn v. Alexander Marmureaneau, M.D.

CASE NO.: 19STCV42457

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant Alexander R. Marmureaneau, M.D.

RESPONDING PARTY(S): Plaintiff Kimberly Clayborn

CASE HISTORY:

· 11/26/19: Complaint filed.

· 07/06/20: First Amended Complaint filed.

· 02/24/21: Second Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a medical malpractice action. Plaintiff alleges that Defendant failed to adhere to the standard of care while performing cardiac surgery on Plaintiff in October of 2018.

Defendant moves for summary judgment.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is GRANTED.

DISCUSSION:

Defendant moves for summary judgment on Plaintiff’s claim for professional negligence.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Evidentiary Objection to Declaration of Omeed Warej, M.D.

Defendant offers several evidentiary objections to various documents filed by Plaintiff. The Court rules on these objections as follows:

1. Declaration of Omeed Warej, M.D.

Objection No. 1 (Entire Declaration): SUSTAINED as lacking foundation. Dr. Warej does not specify which records were reviewed which is necessary to establish the evidentiary basis for any expert testimony. (See Property California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1163.) Further, in his deposition, Dr. Warej testified that he did not review the medical records from the surgery at issue in this case. (Exh. A, 47:18-20.)

Objection No. 2 (¶ 8): SUSTAINED as lacking foundation. While his statement of qualifications as a cardiologist may establish Dr. Warej as a medical expert with respect to the standard of care with respect to cardiological treatment and procedures, it does not provide a basis for his expert opinion on the standard of care with respect to the surgery performed by Defendant, who is a cardiothoracic surgeon. Dr. Warej has not performed cardiac surgery at all, much less the heart surgery at issue in this case. Accordingly, the Court finds he is not qualified to offer opinions on the standard of care for cardiothoracic surgeons performing cardiac surgery, like the one performed on Plaintiff, nor to opine on whether Defendant’s alleged malpractice caused any injury to Plaintiff.

Objection No. 3 (¶ 11): SUSTAINED as lacking foundation and an improper legal conclusion.

Objection Nos. 4-5 (¶ 13a-b): SUSTAINED as irrelevant, lacking foundation and an improper legal/medical conclusion.

Objection Nos. 6-7 (¶ 13i-j): SUSTAINED as lacking foundation, speculative, and an improper legal/medical conclusion.

2. Declaration of Plaintiff Kimberly Clayborn

Objection Nos. 1-2 (¶¶ 12, 14): SUSTAINED as irrelevant. The issues as framed in the Second Amended Complaint are whether Defendant performed heart valve replacement surgery within the standard of medical care. (SAC ¶ 34.)

Objection No. 3-4 (¶¶ 24, 28). SUSTAINED as improper expert testimony by a lay witness and as to Paragraph 28, also provides hearsay statements of Plaintiff’s physicians.

Objection Nos. 5-7 (¶¶ 29-31). SUSTAINED as irrelevant. The issues as framed in the Second Amended Complaint are whether Defendant performed heart valve replacement surgery within the standard of medical care. (SAC ¶ 34.)

Objection Nos. 8-12 (¶¶ 32-36). SUSTAINED as improper expert testimony by a lay witness.

3. Deposition Testimony of Dr. Warej

Objection No. 1 (Entire Exhibit): SUSTAINED as lacking authentication.

Plaintiff’s Defective Separate Statement

Defendant objects to Plaintiff’s Separate Statement of Material Fact as improper. Plaintiff’s Separate Statement of Material Fact rests entirely on bulk citations to Plaintiff’s Exhibits 1, 2, and 3, which constitute the entirety of Plaintiff’s evidentiary production in opposition. In a separate statement, “[c]itation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (Cal. Rule of Court 3.1350(f)(3).) “The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) A bulk citation that is little more than a vague gesture toward the entire opposition does not serve either of these objectives. Plaintiff’s Separate Statement is not compliant, and the Court would be within its discretion to disregard the Separate Statement in its entirety. Even if the Court were to consider the Separate Statement, it would be to no effect, as Plaintiff’s evidence is deficient or otherwise inadmissible in multiple respects for the reasons stated above.

Analysis

Defendant moves for summary judgment on the sole cause of action for medical negligence in the operative Second Amended Complaint.

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) In a medical negligence action, the standard of care is a matter that must be established by expert testimony. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-33.) The causal connection between the negligent conduct and the injury is similarly a matter of expert testimony, and that testimony must establish that the injury was more likely than not the result of medical negligence. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.)

Defendant contends that Plaintiff’s claim for medical malpractice is without merit because Plaintiff cannot establish either that Defendant’s conduct in performing mitral valve replacement surgery breached the standard of care for a cardiothoracic surgeon or that any such breach was the proximate cause of her injuries. The Second Amended Complaint alleges that Defendant breached the standard of care by improperly performing mitral valve replacement surgery on Plaintiff on October 11, 2018. (SAC ¶ 16.) Plaintiff contends that Defendant improperly installed the replacement valve, causing the valve to leak, and sewing Plaintiff’s left circumflex coronary artery closed. (SAC ¶ 29.) Defendant offers the expert testimony of Ali Khoynezhad, M.D., a practicing cardiothoracic surgeon who opines, based on his review of Plaintiff’s medical records and the parties’ depositions, that post-operative mitral valve leak is a well-known complication that does not indicate substandard care. (SSUMF Issue 1 No. 19.) Dr. Khoynezhad also states that Defendant could not have sewn Plaintiff’s left circumflex artery shut during the procedure because Plaintiff showed no evidence of a myocardial infarction at the end of the procedure, which would have occurred had the artery been sutured shut. (SSUMF Issue 1 No. 23.) Moreover, Defendant’s expert states that Plaintiff could not have had a cardiac catheterization procedure through the artery in August 2022 had the artery been sutured closed. (SSUMF Issue 1 Nos. 14, 23.) For those reasons, Dr. Khoynezhad states that Defendant’s treatment of Plaintiff was not a substantial factor in causing Plaintiff’s injuries. (SSUMF Issue 2 Nos. 18-23.) Defendant has thus offered expert testimony tending to show that Defendant did not breach the standard of care nor cause Plaintiff’s injuries. The burden therefore shifts to Plaintiff to demonstrate a triable issue of fact as to these questions.

Although Plaintiff purports to offer expert testimony in opposition demonstrating a triable issue of fact about whether Defendant breached the standard of care and caused Plaintiff’s injuries, the evidence presented is insufficient to carry Plaintiff’s burden. Plaintiff’s separate statement does not set forth the specific pieces of evidence on which the claimed disputed material facts are based. The golden rule of summary adjudication is “if it is not set forth in the separate statement, it does not exist.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [italics in original].) Moreover, for the reasons stated above, Plaintiff’s expert testimony and partial deposition from Dr. Warej are not admissible, as Dr. Warej’s declaration lacks foundation and the deposition transcript is not authenticated. Even if the Court considered this evidence, the Warej Declaration is of no value because it lacks evidentiary support. As to the deposition transcript, the only testimony provided is a statement that Dr. Warej believes that “there was some kind of mechanical impingement of the left circumflex artery at the time of the operation.” (Plaintiff’s Exh. 3 96:19-97:22.) Dr. Warej did not state that this mechanical impingement was caused by Defendant sewing the artery shut, nor did he state that the artery was occluded because of medical negligence, despite being directly asked that precise question. (Id. p. 96:9-10.)

It is not sufficient to argue that a harmful event occurred during the valve replacement surgery. Instead, the plaintiff in a medical malpractice case must demonstrate both that malpractice occurred and that the demonstrated malpractice caused the plaintiff’s injury to “a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.) Plaintiff has failed to do so, and therefore has failed to establish a triable issue of fact.

As Plaintiff has failed to establish a triable issue of fact as to Defendant’s medical negligence or a causal connection to Plaintiff’s injury, Defendant is entitled to summary judgment.

CONCLUSION:

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: December 15, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.