In this age of exorbitant costs and increasingly high stakes in civil litigation, a robust summary judgment mechanism – one capable of terminating cases lacking in merit long before the extraordinary expense of final trial preparation and trial – is simply critical to a properly functioning civil litigation system.
Recently, Division 8 of the Second Appellate District, California Court of Appeal did its part by contributing to several ongoing debates in California law related to the admissibility of expert declarations offered to oppose motions for summary judgment. Fernandez v. Alexander, 2019 WL 336517 (Jan. 28, 2019)(certified for publication). The court weighed in, at least implicitly, on these important issues:
- Do California’s expert gatekeeping requirements apply at the summary judgment stage?
Until Garrett v. Howmedica Osteonics Corp., 214 Cal.App.4th 173 (2013), it was a given that the same admissibility standards applied at trial also applied at summary judgment. But Garrett held that the expert gatekeeping required by Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (2012) did not apply to a summary judgment motion because it was not a trial or trial-like evidentiary hearing.
- Does the rule of liberal construction of summary judgment affidavits offered by the opposing party also apply to determining their admissibility?
Again, until Garrett it was understood that affidavits were liberally construed toward finding a triable issue only after qualifying for admission. But Garrett held that expert affidavits also must be liberally evaluated under a relaxed standard for admissibility.
- When will an expert’s opinion be found too “conclusory” to be admissible and defeat summary judgment?
Courts have long recognized that an expert’s declaration will be excluded or deemed insubstantial (i.e., incapable of creating a triable issue) if too terse. But courts have struggled to define how little is too little.
Fernandez, a medical malpractice case weighs in on the first two issues without directly addressing the Garrett conflict, and offers yet another important data point on the third issue.
Fernandez involved a wrist fracture that healed poorly. Plaintiff alleged primarily that her doctor negligently recommended casting over surgery. On summary judgment, defendant’s expert declared the doctor had met the standard of care and either treatment option could have produced the same outcome. Plaintiff’s expert declared that defendant’s treatment fell outside the standard of care, explaining how in sufficient detail to raise a triable issue.
But not as to causation… The expert opined, based on his training, experience and review of depositions and medical records, that defendant’s negligent treatment caused the deformity. There was no explanation of how the various deficiencies in treatment produced the result; no discussion of whether surgery would have produced a better result; and no effort to respond to the defense expert’s conclusion that surgery could have produced the same deformity. “In short, Dr. Gelb] offered ‘no reasoned explanation connecting the factual predicates to the ultimate conclusion,’ and that is the very definition of a ‘purely conclusory’ opinion.” Because the causation opinion was inadmissible, summary judgment was affirmed.
How did the court deal with the standards disturbed in Garrett? By largely ignoring the case and relying on its nemesis, Bozzi v. Nordstrom, 186 Cal.App.4th 755 (2010), a prior decision by Division 8. Indeed, according to the court, “the general principles on expert testimony are not in dispute.”
In contrast to Garrett, Bozzi held that declarations in opposition to summary judgment are liberally construed to detect a triable issue only if admissible, and admissibility is governed by the same standards governing admission at trial. Garrett never cited Bozzi or even acknowledged that it was departing from the well-settled rules Bozzi had squarely applied.
We say Fernandez “largely” ignored Garrett because it did cite Garrett once, in rejecting plaintiff’s argument that her expert’s terse causation opinion should get a pass because a declaration opposing summary judgment need not be as detailed as declarations supporting the motion or an expert opinion at trial. Fernandez acknowledged the rule (citing Garrett) but explained that “these principles in no way eliminate the need for some form of ‘reasoned explanation,’ and it remains the case that any inferences must ‘reasonably be derived from’ the declaration.” In other words, there are meaningful limits to the level of indulgence courts will exercise in evaluating expert declarations offered to stave off summary judgment.
Without any fanfare, or acknowledgment of Garrett and its rogue positions, the court sided squarely with Bozzi on the key standards, silently contradicting Garrett on each.
- Quoting Bozzi: “An expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial in accordance with Evidence Code section 720.” And, “The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment.” Compare Garrett’s ruling that Sargon gatekeeping requirements do not apply at the summary judgment stage.
- Quoting Bozzi: “[The rule of liberal construction] does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.” Compare Garrett’s conclusion that the rule “applies both to the admissibility of the evidence and its sufficiency to create a triable issue.”
The justifications for the rules reinforced by Fernandez are compelling. It makes no sense to allow an unfounded expert opinion to defeat summary judgment and allow fundamentally flawed cases to survive to trial. The symmetry of admissibility standards gives defendants a meaningful opportunity to terminate cases that lack merit before incurring the additional daunting expense and uncertainty of having to prepare for an unnecessary trial. In contrast, the rules advanced in Garrett dramatically reduce the effectiveness of summary judgment, adding extraordinary expense, burdens, and delay, solely based on evidence that will ultimately be inadmissible.
Though the court chose not to confront the Garrett precedent on these issues, Fernandez’s expression of fidelity to the long-standing rules that put teeth in the summary judgment mechanism is another nail in Garrett’s well-deserved coffin, and a blow for litigation fairness and common sense. However, outlier though it may be, Garrett remains viable law for the time being; it will take either a few a few more well-reasoned court of appeal decisions such as Fernandez to incrementally marginalize the case into insignificance or, better yet, a silver bullet from the Supreme Court to lay it to rest.