Defendant’s Motion for Summary Judgment (Judge Robert D. Foiles)



For the reasons stated below, Defendant Roger Kao M.D.’s Motion for Summary Judgment, or alternatively, for Summary Adjudication, filed 10- 21-22, is DENIED. Code Civ. Proc. Sect. 437c.

First, the Motion is procedurally defective because none of the supporting medical/hospital records or the depositions transcripts is properly cited. Dr. Kao’s Separate Statement, and the 10-21-22 Declaration of Dr. Marcus, both repeatedly cite to decedent’s medical records, and to portions of deposition transcripts. (See Exhibits to the 10-21-22 Kanter Declaration). But none of the medical records or transcripts is properly cited. Code Civ. Proc. Sect. 437c(b)(1) (the Separate Statement must properly cite to all supporting evidence) (“the failure to comply with this requirement … may in the court’s discretion constitute a sufficient ground for denying the motion.”); CRC 3.1350(d)(3) (“Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.”). Here, both Dr. Kao’s Separate Statement and Dr. Marcus’ declaration repeatedly cite to/rely on decedent’s medical records and deposition testimony, but without identifying any page/lines numbers. The Court declines to wade through over 700 pages of hospital records and transcripts to identify what portions of them might be relevant to this Motion.

Dr. Kao’s argument (Reply brief at 1-2) that Plaintiff’s evidentiary objections are not properly formatted does not change the result. Sect. 437c(b)(1) and CRC 3.1350(d)(3) provide the Court the discretion to deny summary judgment where the supporting evidence is not properly cited, because non-compliance with these rules prevents/hinders the Court’s review of the evidence. The fact that Dr. Marcus’ declaration refers to specific dates in the medical records does not remedy this defect, because the Court is still left with the task of thumbing through hundreds of pages of records. The Court disagrees with Dr. Kao’s characterization of this procedural defect as “plac[ing] form over substance.” (Reply at 2).

Further, as separate and independent grounds for denying the Motion,   even if Dr. Marcus’ opinions were considered, there would still be conflicting expert opinions that would preclude summary judgment/adjudication. Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, 176 (dueling expert opinions preclude summary judgment); Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985 (defendant’s MSJ based on

medical expert’s declaration that defendant’s conduct complied with the community standard of care is defeated if plaintiff comes forward with conflicting expert evidence). Here, the conflicting opinions of defendants’ expert Dr. Marcus and Plaintiff’s experts, doctors Sewell and Carveth, preclude Dr. Kao’s request for summary judgment/adjudication.

Dr. Kao’s 1-11-23 Objections to the Sewell and Carveth declarations do not change the result because even the unchallenged portions of Dr. Sewell’s and Dr. Carveth’s declarations are sufficient to create conflicting expert opinions regarding whether Dr. Kao complied with the standard of care, and whether his acts/omissions were a substantial factor in decedent’s alleged premature death. See Sewell Decl., Par. 9, 10, and 12 (opining that Dr. Kao should have advocated for an earlier surgery date), Par. 13 (disagreeing with Dr. Marcus, and opining that it would have been proper for Dr. Kao to recommend surgery earlier); Par. 14 (disagreeing with Dr. Marcus and opining Dr. Kao should have pushed for an earlier surgery date), Par. 15 (disagreeing with Dr. Marcus that it was proper for Dr. Kao to defer to the surgeons as to the timing of decedent’s planned surgery, and opining Dr. Kao was primarily responsible for managing decedent’s diverticular disease); Par. 16 (opining Dr. Kao should have attempted to expedite decedent’s surgery, and that Dr. Kao’s failure to do so fell below the standard of care); see also Carvath Decl., Par. 10 (opining that Dr. Kao [and the other defendants missed “multiple … opportunities for proper intervention and life-saving care,” and that decedent’s care, dating back to 2013, was an “out of sight, out of mind mindset which resulted in his death.”)

While Dr. Kao objects to parts of the Sewell and Carveth declarations, none of the above-referenced portions/opinions have been challenged via objection(s). Standing alone, they sufficiently raise a triable issue as to the negligence claim against Dr. Kao. See disputed Facts Nos. 6, 7, 11, 18-21; Decl. of Justin Sewell, M.D., PhD, MPH, Par. 3-16.

Because the unchallenged portions of the Dr. Sewell’s and Dr. Carveth’s declarations are sufficient to create conflicting expert opinions that preclude summary judgment and adjudication, the Court declines to rule on Dr. Kao’s 1-11-23 Objections to the Declarations of Dr. Sewell and Dr. Carveth. Code Civ. Proc. Sect. 437c(q) (“the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”)

Plaintiff’s 1-6-23 Objections to the Decl. of Marcus Samuel, M.D. Ph.D., are SUSTAINED on grounds the evidence on which he bases his opinions is not properly before the Court. Garibay v. Hemmat (2008) 161 Cal.App.4th 735 (expert medical witness’ declaration, which relied on medical records not properly before the court, did not meet the moving party’s burden of production of evidence required to support summary judgment).