Johana Martinez v. Enderton et al

Filing 69

MEMORANDUM DECISION AND ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION signed by Chief Judge Lawrence J. O'Neill on January 18, 2019. (ECF No. 54) (Munoz, I)

1
2
3
UNITED STATES DISTRICT COURT
4
FOR THE EASTERN DISTRICT OF CALIFORNIA
5
6

JOHANA MARTINEZ,

7

1:16-cv-01556-LJO-SKO

Plaintiff,

8

v.

9

MEMORANDUM DECISION AND
ORDER RE DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT, OR IN
THE ALTERNATIVE, SUMMARY
ADJUDICATION

UNITED STATES OF AMERICA,

10

Defendant.

(ECF No. 54)

11
12
13
14
I. INTRODUCTION

15
16

In this medical malpractice action brought under the Federal Tort Claims Act (“FTCA”), 28

17 U.S.C. §§ 2671-2680, Plaintiff Johana Martinez (“Plaintiff” or “Martinez”) brought suit against
18 Defendants United States of America (“United States” or “Defendant”) and Kaweah Delta Health Care
19 District (“KDHCD”). This action arises out of injuries Plaintiff sustained during a robotic-assisted total
20 laparoscopic hysterectomy with bilateral salpingectomy and cystoscopy performed by Dr. Elizabeth
21 Enderton (“Dr. Enderton”), a physician employed by Family HealthCare Network (“FHCN”) at the
22 Kaweah Delta Medical Center.
23

Defendant United States acknowledged in a certification that Dr. Enderton is deemed an

24 employee of the Public Health Service pursuant to the Federally Supported Health Centers Assistance
25 Act of 1992 (“FSHCAA”), 42 U.S.C. § 233, and was acting in the scope of her employment at the time
1

1

of the events alleged in the FAC. ECF No. 13-1. Defendant United States further certified that FHCN,

2

a federally funded healthcare facility and a grantee of the United States Department of Health & Human

3

Services, is covered by the FTCA by operation of the FSHCAA, 28 U.S.C. § 2697and 28 C.F.R. § 15.3.

4

Id. After the voluntary dismissal of KDHCD, ECF No. 39, the United States is the sole Defendant in

5

this action.
Defendant moved for summary judgment on November 8, 2018 (“Mot.”). ECF No. 54-1.

6
7

Plaintiff opposed (“Opp.”), ECF No. 57, and Defendant filed a reply (“Reply”), ECF No. 66-1. The

8

motion is ripe for review, and this matter is suitable for disposition without oral argument. See Local

9

Rule 230(g). Having carefully considered the record in this case, the parties’ briefing, and the relevant

10 law, the Court DENIES Defendant’s motion in its entirety.
II. BACKGROUND1

11
12 A.

Factual Background

13

Plaintiff was born on April 16, 1980. Declaration of Jeffrey J. Lodge (“Lodge Decl.”), Ex. 1

14 (Deposition of Johana Martinez (“Martinez Depo.”)) at 177:7-8. Since high school, she had suffered
15 from heavy menstrual cycles, excessive cramping, and debilitating pain. Id. at 31:17-18, 32:22-25.
16 Plaintiff’s significant other worked for Dr. Enderton as a medical assistant and discussed with Plaintiff
17 that Dr. Enderton performed hysterectomies by “non-invasive robotic” surgery that had a lower recovery
18 period than traditional surgery. Id. at 31:15-32:12, 37:17-38:11. Plaintiff initially consulted with
19 Dr. Enderton in October of 2014. Id. at 36:5-11.
On December 15, 2015, Dr. Enderton performed a robot-assisted total laparoscopic hysterectomy

20

21 with bilateral salpingectomy and cystoscopy. Lodge Decl., Ex. 6 (Deposition of Elizabeth Enderton
22 (“Enderton Depo.”)) at 40:5-10. Dr. Enderton performed the surgery using the Intuitive Surgical
23
24
25

1

Both parties lodged objections to certain evidence put forward by the other. Objections to relevant evidence are addressed
in the Discussion section.

2

1

Endoscopic Instrument Control System with Surgical Endoscopic Instruments, known as the Da Vinci

2

Surgical System. ECF No. 59, Declaration of Michael T. Margolis (“Margolis Decl.”) ¶ 6(c)(1).

3

Dr. Enderton did not recall any complications during the surgery. Enderton Depo. at 63:21-25. Plaintiff

4

testified that upon awaking after the surgery, she had pain in her pelvic area. Martinez Depo. at 71:9-16.

5

She testified that Dr. Enderton told her that because of the size and number of uterine fibroids, the

6

surgery involved the removal of more tissue than anticipated. Id. at 74:3-10. In the days following the

7

surgery, Plaintiff experienced pain, difficulty eating and using the restroom, difficulty walking, and

8

vomiting. Id. at 72:3-10. At approximately 1:00 p.m. on December 16, 2014, the day after surgery,

9

Plaintiff had a fever of 102.8 degrees. Enderton Depo. at 68:9-21. She had increased pain compared to

10 the day before, had difficulty lying down straight, and had trouble keeping food down. Martinez Depo.
2
11 at 75:25-76:7. Her white blood cell count was elevated. Dr. Enderton’s notes state that later in the day

12 on December 16, Plaintiff’s temperature had stabilized below 100.4 degrees and that she was “doing
13 well, ambulating, voiding,” and had pain control with pain medications. Id. at 65:11-66:15.
Dr. Enderton’s notes for December 17, 2014, state that Plaintiff reported difficulty taking a deep

14

15 breath and that she was ambulating “[s]ome, but not much.” Enderton Depo. at 67:22-68:8. Her
16 temperature remained stable. Id. at 68:15-17. Dr. Enderton attributed Plaintiff’s prior fever to
17 atelectasis, or collapsed lung. Id. at 74:20-75:1. Dr. Enderton was also concerned about a possible
18 infection, abscess, or hematoma, which might have explained the fever and elevated white blood count,
19 and ordered a urinalysis test. Id. at 75:18-76: 1. Plaintiff was discharged that day, and Dr. Enderton did
20 not think that Plaintiff had an abscess or infection, based on “improvement in her vital signs and in her
21 laboratory studies,” as well as a physical exam. Id. at 78:2-79:18. The discharge instructions listed
22 eleven conditions under which she should alert her physician. They included redness or swelling or
23
24
25

2

Prior to the surgery, Plaintiff’s white blood cell count was 7.63 thousand cells per microliter of blood, within the reference
range of 4.0 to 11.0. Enderton Depo. at 65:1. At approximately 5:49 p.m. on December 15, 2014, the count was 16.04. At
4:12 p.m. on December 16, 2014, the count was 14.84. Enderton Depo. at 69:23-70:22, 71:8-17. No count was taken on
December 17, 2014. Id. at 71:18-23.

3

1

drainage at the incision sites, a fever of 101 degrees or more, and persistent pain, among others. Id. at

2

80:18-81:25.
On December 23, 2014, Plaintiff went to the emergency room at Kaweah Delta after

3
4

experiencing a fever and a spike in pain in her upper abdominal area. Martinez Depo. at 87:2-7.

5

Dr. Enderton, who was scheduled to go on vacation the next day, was not at the hospital. Enderton

6

Depo. at 83:1-21. A CT scan performed while Plaintiff was hospitalized determined that Plaintiff had an

7

abdominal abscess that was likely due to bowel perforation. Id. at 107:23-108:8. Plaintiff was treated

8

and discharged on January 9, 2015. Id. at 125:5-127:11. A few days after the discharge, she requested a

9

second opinion, and Dr. Enderton referred her to a surgeon at UCSF. Id. at 146:4-148:6. That was

3
10 Dr. Enderton’s last professional interaction with Plaintiff.

On January 15, 2015, Plaintiff returned to the emergency room, complaining of abdominal pain

11

12 and fever. Id. at 137:23-138:6. Doctors noted an abscess under the spleen, admitted her to place drains
13 to remove the fluid collection, and discharged her on January 26, 2015. Id. at 135:3-137:9. Plaintiff had
14 the second consultation at UCSF, where she was admitted for an incision and drainage procedure for an
15 abdominal wall abscess on February 12, 2015. Id. at 146:4-147:14.
During a follow-up visit to UCSF, Dr. Jonathan T. Carter stated in a medical record dated

16

17 August 15, 2018, that following Plaintiff’s robotic hysterectomy, she had “a likely bowel injury
18 resulting in sepsis, enterocutaneous fistula, and abdominal wall abscess. At that time she was
19 transferred to UCSF and underwent [incision and drainage] of her abdominal wall. Since then she has
20 recovered from this episode but noticed a hernia at the I+D site over the last few years . . . .” Id. Lodge
21 Decl., Ex. 3. Plaintiff testified that she has ongoing symptoms, including defecating blood, black stool,
22 anal leakage, abdominal pain, difficulty sleeping, flashbacks and nightmares about the procedures, post23
24
25

3

They have seen each other socially since then. Id. at 148:8-21.

4

1

traumatic stress disorder, major depressive disorder, generalized anxiety disorder, an inability to be

2

intimate, an inability to do household chores or climb stairs, panic attacks, and other physical limitations

3

related to the pain. Martinez Depo. at 274:6-275:11.
Plaintiff got her doctorate in psychology in 2017 and currently works as a behavioral health unit

4
5

supervisor for the correctional mental health team at Kern Behavioral Health and Recovery Services in

6

Bakersfield. Id. at 23:20-24:14, 185:21-186:3. Her job responsibilities include overseeing the mental

7

health team in all of Kern County Sheriff’s detention facilities. Id. at 24:17-20.

8

B.

9

Procedural Background
Plaintiff filed this lawsuit on October 13, 2016, alleging that she was injured as a result of

10 Dr. Enderton’s robot-assisted total laparoscopic hysterectomy with bilateral salpingectomy. ECF No. 1.
11 The suit named Dr. Enderton, FHCN, the United States Department of Health and Human Services, and
12 KDHCD as defendants. Id. After the United States moved to dismiss, ECF No. 14, Plaintiff filed a First
13 Amended Complaint (“FAC”), ECF No. 16. The FAC brought four causes of action: 1) professional
14 negligence; 2) negligence – vicarious liability/respondeat superior; 3) negligent hiring, retention, and
15 supervision; and 4) negligence. Id. The United States was named as a defendant in the first three
16 counts, and KDHCD was named as the defendant in the fourth count. Id. The second and third counts
17 were dismissed. ECF No. 23. KDHCD was voluntarily dismissed on August 23, 2018. ECF No. 39.
18 Dr. Enderton is the deemed employee of the United States, and thus the United States is the only
19 defendant in the action.
20

Plaintiff filed a state-court suit against Intuitive Surgical, Inc., which manufactured the robot,

21 and Dr. Abiy Meshesha, the physician who evaluated Plaintiff on December 23, 2014. Lodge Decl. ¶ 2.
22

The United States denied liability in this action. In an oversight, Plaintiff failed to take Dr.

23 Enderton’s deposition prior to the deadline for non-expert discovery. Lodge Decl. ¶ 6.
24

Plaintiff timely designated Dr. Michael Thomas Margolis as an expert witness on the standard of

25 care on August 1, 2018. Lodge Decl. ¶ 7, Ex. 2 (“Margolis Report”). Dr. Margolis is an assistant
5

1

clinical professor in obstetrics and gynecology at the school of medicine at UCLA who is board-certified

2

in obstetrics/gynecology and in female pelvic medicine and reconstructive surgery. ECF No. 58,

3

Declaration of Ari Friedman (“Friedman Decl.”), Ex. D; ECF No. 58-1 at PDF p. 111-12. Dr.

4

Margolis’s report states that while it was within the standard of care for Plaintiff to undergo surgical

5

treatment for her uterine fibroids but that the treatment she received fell below the standard of care in

6

two ways. Margolis Report ¶ 1. First, “based on the timing and development of symptoms and the

7

nature of the injury incurred by the Plaintiff, the identified bowel perforation occurred during surgery

8

and was not identified by the operative surgeon.” Margolis Report ¶ 2(a). Dr. Margolis states that the

9

perforation could have resulted from the da Vinci system or from improper use of the system but does

10 not opine as to which was the cause. Instead, his report states that “[g]enerally accepted standards
11 would have required the operating surgeon to have identified and corrected this issue prior to completion
12 of the surgery. The size, nature and severity of the injury would have been identifiable to the operative
13 surgeon at the time of the surgery.” Id. Second, Dr. Margolis’s report states that on the morning of
14 December 17, 2014, Plaintiff “was identified as having an elevated white blood cell count, elevated
15 temperature and feverish condition. The generally accepted standard of care for persons within the
16 medical community would have required the operative surgeon not to discharge the patient and to
17 continue to monitor the patient’s symptoms.” Margolis Report ¶ 2(b). It concludes that if the symptoms
18 worsened, “laparoscopic exploratory surgery would have been required to correct the source of the
19 ongoing symptoms . . . .” Id. Dr. Margolis’s opinions are limited to the care rendered from December
20 15, 20104, through December 17, 2014, and expresses no opinions concerning medical treatment after
21 December 17, 2014. Id. ¶ 7. The report states that given Plaintiff’s ongoing symptoms, it is more likely
22 than not that she would need future bowel surgery. Id. ¶ 4. It further states that Plaintiff “will require
23 the following future medical treatments to a reasonable degree of medical certainty: chronic pain
24 control, future bowel/abdominal surgery, laboratory and radiologic evaluations and physical therapy.”
25 Margolis Report ¶ 6. Defendant did not depose Dr. Margolis. See Margolis Decl. ¶ 4.
6

1

Plaintiff’s expert disclosure also listed Dr. Enderton in her Rule 26(a)(2) disclosure, among other

2

treating physicians. ECF No. 58-1 at PDF p. 79. Defendant objected when Plaintiff set a date for

3

Dr. Enderton’s deposition on the ground that as a deemed employee of the United States, she was a

4

percipient witness only, and the deadline for fact discovery had passed. Lodge Decl. ¶ 12. Following a

5

discovery conference, Plaintiff submitted a Supplemental Expert Disclosure for Dr. Elizabeth Enderton.

6

ECF No. 45. The magistrate judge determined that even though the supplemental disclosure provided

7

an inadequate summary of treating physician Dr. Enderton’s opinions pursuant to Federal Rule of Civil

8

Procedure 26(a)(2)(C), Plaintiff would be permitted to depose Dr. Enderton because the failure was

9

harmless. ECF No. 46. Dr. Enderton gave her deposition on October 5, 2018. Near the close of the

10 deposition, Defendant’s counsel elicited Dr. Enderton’s opinion that, based on her training, experience,
11 and treatment of Plaintiff, she did not believe in her expert medical opinion that any of the care she
12 provided to Plaintiff bell below the standard of care. Enderton Depo. at 149:3-11. Under questioning
13 from Plaintiff’s counsel, she testified that she had not been retained as an expert witness by any party in
14 the case. Id. at 150:11-14.
15

Defendant timely designated Dr. Ramin Mirhashemi as an expert witness. Dr. Mirhashemi is a

16 gynecologic oncologist and former associate professor of obstetrics and gynecology at Harbor-UCLA
17 Medical Center. Lodge Decl., Ex. 4 (“Mirhashemi Report”) at 4. Dr. Mirhashemi’s report states that
18 the robotic surgery was within the standard of care and that Plaintiff was “fully counseled about the
19 surgical procedure, including all the potential complications of surgery.” Id. ¶¶ 1-2. The report further
20 states that based on Dr. Mirhashemi’s experience as a physician who performs bowel surgery, the
21 surgery was performed within the standard of care. Id. ¶ 3. Dr. Mirhashemi’s opinion is that the bowel
22 perforation “could not have occurred during surgery” because if it had, fecal contents would have been
23 visible and Plaintiff would have experienced “signs and symptoms of sepsis within 24 hours” of the
24 surgery. Id. That Plaintiff did not return to the emergency room for eight days following surgery is
25 evidence that the perforation was not immediate. Id. Dr. Mirhashemi’s report further states that the
7

1

decision to continue monitoring Plaintiff at the hospital for two days following what is typically an

2

outpatient procedure was diligent, and that because an elevated white blood cell count is “extremely

3

common” following this type of surgery, discharging Plaintiff when she no longer had a fever and had a

4

white blood cell count that was trending downward was appropriate. Id. ¶ 4. Finally, the report opines

5

that Plaintiff “has clinically recovered from the bowel issues related to her surgery” and that there is no

6

evidence that she will need further surgeries related to the hysterectomy. Id. ¶ 5.
III. STANDARD OF DECISION

7
8
9

Summary judgment is appropriate when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. At summary judgment, a

10 court’s function is not to weigh the evidence and determine the truth but to determine whether there is a
11 genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must
12 draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility
13 determinations or weigh the evidence. See id. at 255; see also Reeves v. Sanderson Plumbing Prods.,
14 Inc., 530 U.S. 133, 150 (2000). But if the evidence of the nonmoving party is merely colorable or is not
15 significantly probative, summary judgment may be granted. See id. at 249-50. A fact is “material” if its
16 proof or disproof is essential to an element of a plaintiff’s case. Celotex Corp. v. Catrett, 477 U.S. 317,
17 322-23 (1986). A factual dispute is “genuine” “if the evidence is such that a reasonable jury could
18 return a verdict for the nonmoving party.” Id. at 248. “Where the record taken as a whole could not
19 lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”
20 Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
21 omitted).
22

The moving party bears the initial burden of informing the Court of the basis for its motion, and

23 of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a
24 genuine issue of material fact for trial. Celotex, 477 U.S. at 323. If the moving party meets its initial
25 burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set
8

1

forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See

2

Fed. R. Civ. P. 56(c); Liberty Lobby, Inc., 477 U.S. at 250. “If a moving party fails to carry its initial

3

burden of production, the nonmoving party has no obligation to produce anything, even if the

4

nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire, 210 F.3d at 1102-

5

1103; see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

6

IV. DISCUSSION

7

A.

Prima Facie Case Of Medical Negligence

8

Defendant makes two arguments in support of its claim that the Court should grant summary

9

judgment to Defendant because Plaintiff has not made out a prima facie case of medical negligence.

10 First, it argues that because Plaintiff’s two designated medical experts have contradictory opinions,
11 Plaintiff cannot satisfy her burden of proof on the standard of care. Second, it argues that Plaintiff’s
12 retained expert Dr. Margolis should be excluded under Daubert, leaving Plaintiff with no expert to opine
13 on the standard of care or medical causation.
14

Under California law, the elements for professional negligence, such as medical malpractice, are:

15 “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his
16 profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection
17 between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the
18 professional’s negligence.” Turpin v. Sortini, 31 Cal.3d 220, 229-230 (1982).
19

Physicians specializing in a medical area are “held to that standard of learning and skill normally

20 possessed by such specialists in the same or similar locality under the same or similar circumstances.”
21 Quintal v. Laurel Grove Hospital, 62 Cal. 2d 154, 159-160 (1964).
22

The general rule applicable to medical practice cases is:

23

The standard of care against which the acts of a physician are to be measured is a matter
peculiarly within the knowledge of experts; it presents the basic issue in a malpractice
action and can only be proved by their testimony [citations], unless the conduct required
by the particular circumstances is within the common knowledge of the layman. The
“common knowledge” exception is principally limited to situations in which the plaintiff

24
25

9

1
2
3
4

can invoke the doctrine of res ipsa loquitur, i.e., when a layperson is able to say as a matter
of common knowledge and observation that the consequences of professional treatment
were not such as ordinarily would have followed if due care had been exercised. The
classic example, of course, is the X-ray revealing a scalpel left in the patient’s body
following surgery. Otherwise, expert evidence is conclusive and cannot be disregarded.
Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal. 4th 992, 1001 (1994).

5

“What is or what is not proper practice on the part of the physician is uniformly a question for

6

experts and can be established only by the testimony of such experts.” Sansom v. Ross–Loos Medical

7

Group, 57 Cal. App. 2d 549, 553 (1943). “Plaintiffs thus [need] opinions from qualified experts to

8

establish a prima facie case.” Osborn v. Irwin Memorial Blood Bank, 5 Cal. App. 4th 234, 273 (1992).

9

Moreover, “[n]egligence on the part of a physician or surgeon will not be presumed; it must be

10 affirmatively proved.” Huffman v. Lindquist, 37 Cal. 2d 465, 474 (1951). In a medical malpractice
11 action, “causation must be proven within a reasonable medical probability based upon competent expert
12 testimony. Mere possibility alone is insufficient to establish a prima facie case.” Jones v. Ortho
13 Pharmaceutical Corp., 163 Cal. App. 3d 396, 402-403 (1985); see also Gotschall v. Daley, 96 Cal. App.
14 4th 479, 484 (2002) (“[E]xpert testimony was essential to prove causation. Without testimony on
15 causation, plaintiff failed to meet his burden on an essential element of the cause of action.”). “In
16 California, causation must be founded upon expert testimony and cannot be inferred from the jury’s
17 consideration of the totality of the circumstances unless those circumstances include the requisite expert
18 testimony on causation.” Cottle v. Superior Court, 3 Cal. App. 4th 1367, 1384 (1992).
19

1.

Standard Of Care

20

Defendant argues that Plaintiff’s two experts on the standard of care, Dr. Margolis and

21 Dr. Enderton, offer opinions that materially contradict each other, leaving her unable to establish a
22 breach of the standard of care. In support of its argument that this inconsistency in opinion by a party’s
23 disclosed experts, Defendant cites Pennsylvania case law holding that if a party’s expert witnesses “so
24 vitally disagree on essential points as to neutralize each other’s opinion evidence, their sponsor has not
25 borne the burden of proof which the law casts upon him, and to that extent has failed to make out his
10

1

case.” Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 61 (1927); see also Menarde v.

2

Philadelphia Transp. Co., 376 Pa. 497, 501 (1954) (“it has been held essential that no absolute

3

contradictions appear in [expert witnesses’] ultimate conclusions, although minor points of difference

4

between such witnesses would not necessarily exclude their testimony”); Brannan v. Lankenau Hosp.,

5

490 Pa. 588, 596 (1980) (noting that while “[i]t is true we have previously held that a plaintiff’s case

6

will fail when the testimony of his two expert witnesses is so contradictory that the jury is left with no

7

guidance on the issue,” the “conflicts in testimony are fatal only if absolute” and holding that the “minor

8

divergence” at issue in the case before it did not “sufficiently [compromise] the witness’ testimony on

9

direct to justify removal of this issue from jury consideration”). Though Defendant cites no California

10 courts adopting this principle or citing this body of law, Defendant contends that the principle is a sound
11 one.
12

Plaintiff responds that Dr. Enderton was not a retained expert, that she was only listed as a

13 treating physician, and that her opinion testimony on the ultimate issue, which Defendant’s counsel
14 elicited at her deposition, is “outside of her purview as a treating physician.” Opp. at 11. Defendant
15 responds that Plaintiff’s own expert designation for Dr. Enderton included that she was expected to offer
16 testimony concerning the standard of care. See Lodge Decl., Ex. 5 (Plaintiff’s Supplemental Expert
17 Disclosure for Dr. Elizabeth Enderton) at 2:5-7 (“She will testify about the care and treatment for the
18 aforementioned surgery, including pre-operative, operative, and post-operative care, including the
19 respective standard of care for each.”) & 2:21-23 (“She will testify that she did not note any bowel
20 perforation at that time and the standard of care regarding post-surgical inspection of wound sites.”).
21 Plaintiff’s argument that Dr. Enderton served only as a percipient witness rings hollow, given the parties
22 brought this dispute before the magistrate judge, resulting in an order that Plaintiff “amend her
23 disclosure of treating physician Dr. Elizabeth Enderton, D.O. as an expert witness pursuant to Federal
24 Rule of Civil Procedure 26(a)(2)(A),” in the form of a disclosure that meets the requirements of Federal
25 Rule of Civil Procedure 26(a)(2)(C) by setting forth “(i) the subject matter on which the witness is
11

1

expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the

2

facts and opinions to which the witness is expected to testify.” ECF No. 45.4
This is, to be sure, an unusual situation. Plaintiff has listed as a Rule 26 witness the physician

3
4

(and former defendant) she alleges committed malpractice, an act that Defendant argues should result in

5

summary judgment against Plaintiff because of a disagreement among Plaintiff’s experts about the

6

ultimate issue in the case.
The Court is not persuaded that there is, or should be, a blanket rule requiring a grant of

7
8

summary judgment against a party whose retained experts disagree on an essential point in the case.

9

But even that situation is absent here, where Plaintiff’s non-retained expert, a treating physician and

10 former defendant, disagrees with the Plaintiff’s retained expert about whether she committed a breach of
11 the standard of care.
12

2.

Exclusion Of Dr. Margolis’s Opinions

13

Defendant seeks to exclude Dr. Margolis’s testimony, which it contends rests on unsound

14 methodology based on speculative assumptions and erroneous data, for allegedly failing to meet the
15 reliability and fitness requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow
16 Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny.
17

a.

Expert Testimony

18
19
20
21
22
23
24
25

Federal Rule of Civil Procedure 26 provides that “if the witness is one retained or specially employed to provide expert
testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony,” that witness
must provide a written expert report. Fed. R. Civ. P. 26(a)(2)(B). Rule 26 was amended in 2010 to include Fed. R. Civ. P.
26(a)(2)(C), which provides that experts not required to provide an expert report must nonetheless disclose (i) the subject
matter of the witness’s expected testimony under Federal Rule of Evidence 702, 703, or 704 and (ii) a summary of the facts
and opinions about which the expert will testify. 3 Robert L. Haig, Business and Commercial Litigation in Federal Courts
§ 29:10 (4th ed.2018). The advisory committee’s notes state that “[a] witness who is not required to provide a report under
Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705”
and note that “[f]requent examples include physicians or other health care professionals.” Fed. R. Civ. P. 26 Advisory
Comm. Notes (2010). See also Republic of Ecuador v. Mackay, 742 F.3d 860, 866 n.1 (9th Cir. 2014) (“These experts
typically include treating physicians or a party’s employees who do not regularly provide expert testimony.”); Alfaro v. D.
Las Vegas, Inc., No. 2:15-cv-02190-MMD-PAL, 2016 WL 4473421, at *11 (D. Nev. Aug. 24, 2016) (“A treating physician
is still a percipient witness of the treatment rendered and may testify as a fact witness and also provide expert testimony
under Federal Evidence Rules 702, 703, and 705. However, with respect to expert opinions offered, a Rule 26(a)(2)(C)
disclosure is now required.”).
4

12

1

Federal Rule of Evidence (“Rule”) 702 governs the admissibility of expert testimony. Under

2

Rule 702, a proposed expert witness must first qualify as an expert by “knowledge, skill, experience,

3

training, or education.” Fed. R. Evid. 702. The proposed expert witness may then testify in the form of

4

an opinion if: “(a) the expert’s . . . specialized knowledge will help the trier of fact to understand the

5

evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the

6

testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the

7

principles and methods to the facts of the case.” Id.

8
9

The trial court serves a special “gatekeeping” function with respect to Rule 702. Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 147 (1999). The trial court must make an initial assessment of the

10 proposed expert testimony to ensure that it “rests on a reliable foundation and is relevant to the task at
11 hand.” Daubert, 509 U.S. at 597. In other words, the trial court must consider (1) whether the
12 reasoning or methodology underlying the expert testimony is valid (the reliability prong); and (2)
13 whether the reasoning or methodology can be applied to the facts in issue (the relevancy
14 prong). See id. at 592-93.
15

To determine the reliability of expert testimony, the Supreme Court has identified four factors

16 that a trial court may consider: “(1) whether the ‘scientific knowledge . . . can be (and has been) tested’;
17 (2) whether ‘the theory or technique has been subjected to peer review and publication’; (3) ‘the known
18 or potential rate of error’; and (4) ‘general acceptance.’” Obrey v. Johnson, 400 F.3d 691, 696 (9th Cir.
19 2005) (quoting Daubert, 509 U.S. at 593-94). These factors, however, are not exclusive. See Kumho
20 Tire, 526 U.S. at 150 (“Daubert makes clear that the factors it mentions do not constitute a definitive
21 checklist or test.” (emphasis in the original) (citation and internal quotation marks omitted)). Rather, the
22 trial court enjoys “broad latitude” in deciding how to determine the reliability of proposed expert
23 testimony. Id. at 141-42. As to relevancy, the Supreme Court has explained that expert testimony is
24 relevant if it assists the trier of fact in understanding evidence or determining a fact in issue in the
25 case. Daubert, 509 U.S. at 591.
13

1

The proponent of the expert testimony carries the burden of proving its admissibility. Fed. R.

2

Evid. 702 advisory committee’s note to 2000 amendment; Lust v. Merrell Dow Pharms., Inc., 89 F.3d

3

594, 598 (9th Cir. 1996).

4
5

b.

Discussion

Defendant argues that Dr. Margolis’s opinions are unreliable and should be excluded. In

6

particular, Defendant argues that Dr. Margolis’s opinions that Dr. Enderton should have identified the

7

bowel perforation prior to the end of the surgery and that Dr. Enderton should not have discharged

8

Plaintiff on December 17, 2014, are unsupported because Dr. Margolis failed to address evidence in the

9

medical record contrary to these opinions and do not cite authoritative medical sources.

10

Dr. Margolis’s expert report states that it was within the standard of care for Plaintiff to undergo

11 surgical treatment for her uterine fibroids but that the performance of the surgery and post-operative
12 treatment fell below the standard of care. First, “based on the timing and development of symptoms and
13 the nature of the injury incurred by the Plaintiff, the identified bowel perforation occurred during
14 surgery and was not identified by the operative surgeon.” Margolis Report ¶ 2(a). Dr. Margolis states
15 that the perforation could have resulted from the da Vinci system or from improper use of the system but
16 does not opine as to which was the cause. Instead, his report states that “[g]enerally accepted standards
17 would have required the operating surgeon to have identified and corrected this issue prior to completion
18 of the surgery. The size, nature and severity of the injury would have been identifiable to the operative
19 surgeon at the time of the surgery.” Id. Defendant argues that Dr. Margolis’s report “fails to cite any
20 evidence in the medical record for this conclusion and he fails to provide any details or explanation for
21 his wholly conclusory and ambiguous statement.” Mot. at 11. Defendant’s expert Dr. Mirhashemi’s
22 expert report states that bowel perforation could not have occurred during the surgery because “fecal
23 contents would be clearly visualized” at that time, and Plaintiff would have experienced immediate signs
24
25
14

1

of sepsis. Mirhashemi Report ¶ 3.5 Defendant also cites Dr. Enderton’s testimony that during the

2

surgery she looked for bowel injury but did not observe any at the time. Id. n.2 (citing Enderton Depo.

3

at 56:3-60:6). Dr. Enderton’s testimony that she observed no bowel perforation during the procedure

4

does not render Dr. Margolis’s testimony unreliable; it is instead part of the basis for his conclusion that

5

the treatment rendered was below the standard of care.
Dr. Margolis’s report next states that on the morning of December 17, 2014, Plaintiff “was

6
7

identified as having an elevated white blood cell count, elevated temperature and feverish condition.

8

The generally accepted standard of care for persons within the medical community would have required

9

the operative surgeon not to discharge the patient and to continue to monitor the patient’s symptoms.”

10 Margolis Report ¶ 2(b). It concludes that if the symptoms worsened, “laparoscopic exploratory surgery
11 would have been required to correct the source of the ongoing symptoms . . . .” Id.
Defendant’s expert Dr. Mirhashemi disagrees with Dr. Margolis’s opinion, stating in his report

12

13 that Dr. Enderton’s decision to admit Plaintiff for two days following what is normally an outpatient
14 procedure was within the standard of care, because at the time of discharge, Plaintiff’s “white blood cell
6
15 count was trending down and she was without a fever.” Mirhashemi Report ¶ 4. Dr. Mirhashemi

16 further notes that an elevated white blood cell count after this sort of procedure is “extremely common.”
17 Id. Defendant faults Dr. Margolis for “fail[ing] to acknowledge that the white blood cell count was
18
19
5

20
21
22
23
24
25

Dr. Mirhashemi testified at his deposition that he could not opine on whether the size of the burn was one that would have
been immediately visible because he was unaware of what size the burn was. Mirhashemi Depo. at 17:14-18 (“Q.
Considering the size of the burn that Ms. Martinez received, would you consider that type of burn to be difficult to detect? A.
I’m not aware of what size a burn that she received, so I really can’t comment on that.”).
6
Plaintiff objects to the report as inadmissible hearsay because it is an unsworn expert report, citing Liebling v. Novartis
Pharm. Corp., No. CV 11-10263 MMM (MRWx), 2014 WL 12576619, at *1 (C.D. Cal. Mar. 24, 2014), for the proposition
that “it is well established that unsworn expert reports are inadmissible and cannot be used to create a triable issue of fact for
purposes of summary judgment.” ECF No. 62. As Defendant correctly points out, courts have also held “that a party can
‘cure’ the defect of an unsworn expert’s report by proffering the sworn deposition or declaration of the expert.” Liebling,
2014 WL at *2 (collecting cases and granting leave for expert for file a sworn declaration or submit sworn deposition
testimony). Defendant here submitted a sworn declaration from Dr. Mirhashemi with the reply brief. ECF No. 66-3. This
sworn declaration, attached to his previously submitted expert report (which was the subject of his deposition testimony,
which Plaintiff submitted with her opposition), is sufficient to cure the procedural deficiency of the original filing and to
permit its consideration with the rest of the summary-judgment record.

15

1

trending downward”7 and notes that Dr. Enderton gave Plaintiff instructions to return if her symptoms

2

worsened or if she had any problems.
“The purpose of [expert] reports is not to replicate every word that the expert might say on the

3
4

stand.” Walsh v. Chez, 583 F.3d 990, 994 (7th Cir. 2009). The purpose “is instead to convey the

5

substance of the expert’s opinion (along with the other background information required by Rule

6

26(a)(2)(B)) so that the opponent will be ready to rebut, to cross-examine, and to offer a competing

7

expert if necessary.” Id.; cf. McClellan v. I-Flow Corp., 710 F. Supp. 2d 1092, 1115 n.14 (D. Or. 2010)

8

(noting that “[t]he purpose of expert reports is to ‘avoid unfair surprise by enabling the adversary to

9

prepare a response to the expert testimony,’” not to explicate every word of the methodology, and

10 holding that in light of “the numerous, lengthy, and altogether comprehensive depositions of plaintiffs’
11 experts, any infirmity in an expert’s report is not prejudicial and does not warrant exclusion”); Castillo
12 v. City & Cty. of San Francisco, No. C 05-00284 WHA, 2006 WL 618589, at *2 (N.D. Cal. Mar. 9,
13 2006) (noting that if a party had been on notice that a physician would offer opinion testimony, it might
14 have filed a Daubert motion, for which “a deposition would have been most helpful”). Defendant could
15 have deposed Dr. Margolis to develop the expert record in support of its effort to preclude Dr. Margolis
16 from testifying. It did not. The Court is left with Dr. Margolis’s expert report, based on his experience
17 and review of the medical records, which Defendant challenges by citing to its own expert Dr.
18 Mirhashemi’s report, which is based on his experience and review of the medical records. Indeed, as to
19 Defendant’s argument that Dr. Margolis’s failure to cite authoritative material is fatal to the
20 admissibility of his opinions, the Court notes that Defendant’s expert, Dr. Mirhashemi, in this respect
21 does not differ from Dr. Margolis. See Mirhashemi Depo. at 20:8-12 (“Most of the things that I wrote
22 here were clinical judgment and my medical experience, surgical experience through practice as well as
23
24
7

25

According to Dr. Enderton’s deposition, prior to the surgery, Plaintiff’s white blood cell count was 7.63, within the
reference range of 4.0 to 11.0. At approximately 5:49 p.m. on December 15, 2014, the count was 16.04. At 4:12 p.m. on
December 16, 2014, the count was 14.84. Enderton Depo. at 70:1-22, 71:8-17. Plaintiff was discharged the next day.

16

1

journals that I read, but I don’t recall those particular articles.”).
Finally, Defendant cites case law for the proposition that “[a] difference of medical opinion

2
3

concerning the desirability of one particular medical procedure over another does not, however,

4

establish that the determination to use one of the procedures was negligent.” Clemens v. Regents of

5

Univ. of California, 8 Cal. App. 3d 1, 13 (1970). This is not such a scenario. The dispute here centers

6

on the standard of care – whether Plaintiff had a bowel perforation that should have been detected at the

7

time of surgery and whether Plaintiff should have been discharged on December 17, 2014.
Precluding a properly credentialed expert witness from offering trial testimony solely on the

8
9

basis of that expert’s report without the benefit of developing a record through a deposition is a tall task,

10 and one that Defendant has not succeeded in accomplishing here. Defendant has not demonstrated that
11 Dr. Margolis’s opinions are unreliable and should be precluded.
12

Accordingly, Plaintiff has put forward a prima facie case that Dr. Enderton breached the standard

13 of care, and the motion for summary judgment is DENIED.
14 B.

Summary Adjudication Of Damage Claims

15

Defendant argues that even if Plaintiff succeeded in making a prima facie case of negligence, it

16 is entitled to summary adjudication on Plaintiff’s damages claims for future medical expenses and lost
17 future earnings. There are three “basic steps for calculating pecuniary damages under the FTCA: (1)
18 compute the value of the plaintiff's loss according to state law; (2) deduct federal and state taxes from
19 the portion for lost earnings; and (3) discount the total award to present value.” Shaw v. United States,
20 741 F.2d 1202, 1205 (9th Cir. 1984). California law provides that “[d]amages may be awarded, in a
21 judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the
22 future.” Cal. Civ. Code § 3283. Any such “prospective detriment must be so proven that from the proof
23 the trier of fact can reasonably conclude that the claimed detriment is reasonably certain to occur.”
24 Regalado v. Callaghan, 3 Cal. App. 5th 582, 602 (2016) (alterations omitted) (quoting Khan v. S. Pac.
25 Co., 132 Cal. App. 2d 410, 416 (1955)). “[I]t is fundamental that ‘damages which are speculative,
17

1

remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.’” Piscitelli

2

v. Friedenberg, 87 Cal. App. 4th 953, 989 (2001) (citation omitted); see also Regalado, 3 Cal. App. 5th

3

at 602 (“An award of damages must be predicated on something more than mere possibilities.”).

4

1.

Future Medical Expenses

5

Defendant first argues that recent medical records show that Plaintiff has “recovered” and that

6

none of her regular medical providers has suggested that she needs future medical care,8 leaving Plaintiff

7

with only speculation and conjecture to support the claim for future medical expenses. Mot. at 14. “An

8

injured plaintiff is entitled to recover the reasonable value of medical services that are reasonably certain

9

to be necessary in the future.” Corenbaum v. Lampkin, 215 Cal. App. 4th 1308, 1330 (2013) (citing Cal.

10 Civ. Code §§ 3283 (providing for award of damages “for detriment . . . certain to result in the future”),
11 3359 (providing that damages “must, in all cases, be reasonable”)), as modified (May 13, 2013). “It is
12 for the [finder of fact] to determine the probabilities as to whether future detriment is reasonably certain
13 to occur in any particular case.” Garcia v. Duro Dyne Corp., 156 Cal. App. 4th 92, 97 (2007).
In support of its argument that Plaintiff has recovered, Defendant relies on a medical record from

14

15 August 15, 2018, during Plaintiff’s visit to the UCSF Medical Center. Lodge Decl., Ex. 3. This record
16 states that following Plaintiff’s robotic hysterectomy, she had “a likely bowel injury resulting in sepsis,
17 enterocutaneous fistula, and abdominal wall abscess. At that time she was transferred to UCSF and
18 underwent [incision and drainage] of her abdominal wall. Since then she has recovered from this
19 episode but noticed a hernia at the I+D site over the last few years . . . .” Id. Plaintiff objects that this
20 hearsay document was obtained after the close of fact discovery and never produced. Opp. at 19. The
21 hearsay objection is overruled. Medical records kept in the ordinary course of business fall under an
22 exception to the rule against hearsay and could be admissible at trial. Fed. R. Evid. 803(6);9 United
23
24
8

25

The lone exception is a hernia repair that the parties agree is not at issue in this case. Reply at 5 n.2.

9

That section provides that “regardless of whether the declarant is available as a witness,” the following is not excluded

18

1

States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005) (“medical records from Hawkins’ hospital visit and the

2

notes of Hall’s parole officer were records kept in the ordinary course of business, classic exceptions to

3

the hearsay rule” (citing Fed. R. Evid. 803(6))). The record could be admissible at trial and is properly

4

considered in a motion for summary judgment. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir.

5

2003) (considering the contents of a diary on a motion for summary judgment, over a hearsay objection,

6

because the contents, “depending on the circumstances, could be admitted into evidence at trial in a

7

variety of ways”).10
Nevertheless, the document’s casual reference to her recovery does not establish that Plaintiff

8
9

has no reasonable certainty of future medical expenses, especially in light of conflicting evidence from

10 Plaintiff’s deposition and from Dr. Margolis’s expert report. Nor does the fact that Plaintiff’s “regular
11 medical providers” do not suggest the need for future medical care preclude the issue from being
12 presented at trial where there is contrary expert testimony. See Burnett v. United States, No. EDCV 1513 1707-CAS (KKx), 2016 WL 8732344, at *4 (C.D. Cal. Aug. 17, 2016) (“While the treating physician’s
14 testimony is strong evidence Plaintiff will not incur future medical damages for future surgeries, it does
15
16 under the rule against hearsay:
17

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis
if:

18

(A) the record was made at or near the time by--or from information transmitted by--someone with
knowledge;

19

(B) the record was kept in the course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit;

20

(C) making the record was a regular practice of that activity;

21
22

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

23

(E) the opponent does not show that the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.

24 Fed. R. Evid. 803(6).
25

10

The UCSF medical record would be admissible at trial only if it is properly authenticated. See Fed. R. Evid. 901(a).

19

1

not preclude Plaintiff from offering expert testimony in support of his position.”), report and

2

recommendation adopted, No. EDCV 15-1707-CAS (KKx), 2016 WL 8738996 (C.D. Cal. Aug. 19,

3

2016).

4

Dr. Margolis’s expert report states that Plaintiff “will require the following future medical

5

treatments to a reasonable degree of medical certainty: chronic pain control, future bowel/abdominal

6

surgery, laboratory and radiologic evaluations and physical therapy.” Margolis Report ¶ 6. Dr.

7

Margolis estimates the reasonable value of these services to be between $250,000 to $1,500,000. Id.

8

Defendant argues that Dr. Margolis fails to identify any future medical treatment to a reasonable degree

9

of medical certainty, and that without specific evidence of the need for future medical treatment, the

10 claim is too speculative to proceed to trial.
11

California courts have not set so high a bar for testimony concerning future medical expenses. In

12 Regalado v. Callaghan, for instance, the California Court of Appeal held that there was sufficient
13 evidence to support a jury’s award of future medical expenses where it heard expert testimony that it
14 was more likely than not that a plaintiff would require future surgery, even though the defendant argued
15 that the expert’s opinion was speculative because the expert had testified that individuals with plaintiff’s
16 condition “are ‘more likely to develop arthritic changes that could lead one to need additional surgery.’”
17 3 Cal. App. 5th 582, 602 (2016). The court held that “[t]he fact that there was some uncertainty as to
18 whether [the plaintiff] would develop arthritic changes requiring additional surgery does not preclude a
19 finding that it was reasonably certain he would need future surgery.” Id. The court cited other cases
20 involving uncertain expert testimony. In one case, the court found “sufficient to support a finding of
21 future damages with reasonable certainty” testimony from an expert that “‘it is reasonable to assume he
22 is going to have trouble . . . in the future. Just how much, I don’t know. Just what the course of that
23 trouble will be, I don’t know.” Id. (quoting Ostertag v. Bethlehem Shipbuilding Corp., 65 Cal. App. 2d
24 795, 805-06 (1944)) (alteration in original). In another, the court found that “the jury could reasonably
25 conclude that plaintiff was reasonably certain to experience some pain and disability for the rest of his
20

1

life” where the plaintiff’s expert “based his opinion on future damages on the fact the plaintiff was still

2

experiencing pain two years after the accident and his experience that ‘[f]requently in this type of neck

3

injury a patient will continue to have symptoms indefinitely’ and ‘[i]t may last forever; . . . it may get

4

worse; he may improve somewhat.’” Id. at 603 (quoting Guerra v. Balestrieri, 127 Cal. App. 2d 511,

5

518-19 (1954)). That future damages may be “subject to various possible contingencies does not bar

6

recovery.” Id. at 602.
Dr. Margolis’s testimony may ultimately prove too speculative to carry the burden of

7
8

establishing by a preponderance of the evidence that the injury is reasonably certain to result in future

9

medical expenses and warrant an award of damages, but the opinion outlined in his expert report is

11
10 enough to create a factual dispute for trial.

11
12
11

The Court also notes that Defendant’s expert Dr. Mirhashemi conceded at deposition that he could not rule out that

13 Plaintiff might need further surgery to address her ongoing pain:
14

Q. What documents are you relying on that support your opinion that Ms. Martinez will not need surgery in
the future?

15

A. I believe the records that I received from UCSF.

16

Q. Do you recall what specifically was said in those records that informed your opinion on that point?

17

A. Well, that basically the drains were removed and she didn’t not require an ostomy, so I’m presuming -there’s no ostomy, there’s no need for reversal and there’s no drain, there’s no need for any further
intervention.

18
Q. And what is an ostomy?

19
20
21

A. Colostomy or ileostomy is a condition where a bag is required due to externalization of a segment of the
bowel or intestine.
Q. Before you had mentioned that Ms. Martinez’s complaints of pain may be caused by scar tissue, do you
recall that?

22

A. I do.

23

Q. Are you familiar or aware of any type of surgery that could be used to help an individual suffering from
pain due to scar tissue?

24

A. Yes.

25

Q. Were you able to rule that out as a possibility for Ms. Martinez in the future?

21

1

2.

Future Earnings

2

Defendant also argues that Plaintiff has not put forward sufficient evidence of a loss of future

3

earnings for the claim to proceed to trial. A plaintiff seeking damages for loss of earning capacity bears

4

the burden of demonstrating that she is “reasonably certain to suffer a loss of future earnings.” Licudine

5

v. Cedars-Sinai Med. Ctr., 3 Cal. App. 5th 881, 892 (2016) (quoting Robison v. Atchison, T. & S.F. Ry.

6

Co., 211 Cal. App. 2d 280, 288 (1962)). A finder of fact may, but is not required to, “infer the

7

reasonable certainty of such a loss from the nature of the injury,” though a plaintiff is entitled to no

8

damages for loss of earning capacity “where the evidence demonstrates there was no such loss.” Id.

9

The value of any loss of earning capacity is “the difference between what the plaintiff’s earning capacity

10 was before her injury and what it is after the injury.” Id. at 893 (citing Restatement 2d Torts, § 924,
11 com. d).
12

Defendant argues that because Plaintiff works full-time, including hundreds of hours of overtime

13 annually, and that no doctor has identified a disability that would interfere with her ability to do the type
14 of job in which she is currently employed, she cannot demonstrate any lost future earnings. Mot. at 15.
15 Without any evidence of a work disability, Defendant argues, Plaintiff cannot show any reasonable
16 probability of lost earnings in the future. Reply at 6. Plaintiff’s opposition does not directly respond to
17 the argument about future earnings, focusing instead on Plaintiff’s ongoing medical and psychological
18 problems, which she has continued to experience even while working full-time. Opp. at 19-20. Plaintiff
19 did submit in support of its opposition to the motion, however, a copy of the report of its economic20 valuation expert, Enrique Vega. ECF No. 58-1, Ex. C-1. That report calculates that in light of
21 Plaintiff’s “nonsevere physical disability” as a result of the injury sustained during the surgery at issue in
22 this case, she has a 6.6-year loss in worklife expectancy, and calculates the economic loss resulting from
23
24

A. No.

25 Mirhashemi Depo. at 40:20-41:20.
22

1

this decrease in worklife expectancy. Id. at PDF p. 138-39. This is enough to create a triable issue of

2

fact for trial.

3
V. CONCLUSION AND ORDER

4
5

For the reasons set forth above, Defendant’s motion for summary judgment is DENIED, and

6

Defendant’s motion in the alternative for summary adjudication of Plaintiff’s claims for future medical

7

expenses and lost future earnings is DENIED.

8
9
10

IT IS SO ORDERED.
Dated:

January 18, 2019

/s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
23