JAMES A EUBANKS JR VS DOES 1 TO DOES 50

Tentative Rulings

Case Number: BC692445    Hearing Date: January 28, 2020    Dept: SEC

EUBANKS v. ARJO, INC.

CASE NO.: BC692445

HEARING: 1/28/19

JUDGE: MARGARET M. BERNAL

#6

TENTATIVE ORDER

Defendant Alpha Diagnostics, P.C.’s motions for summary judgment is DENIED.

Arjo, Inc. to give NOTICE.

Defendant Alpha Diagnostics, P.C. (“Alpha”) moves for summary judgment against Plaintiff Eubanks and Cross-Complainant Arjo, Inc. pursuant to CCP 437c.

Objections

Arjo’s evidentiary objections to Ehrhart and Semos’s declarations are overruled.

Alpha’s evidentiary objections to Waghalter’s declaration is sustained as to objections 2-3 and overruled as to objections 1 and 4. Objections to Solomon’s declaration are overruled.

Pleadings

The First Amended Complaint (“FAC”) alleges that on 3/8/17, while Plaintiff was having cervical spine surgery, the compression device caused injury to Plaintiff’s body and nervous system. The FAC asserts a single cause of action for Negligence against Defendant Alpha Diagnostics (as Doe 36). Par. 28 alleges that on 3/8/17, Defendant was involved in Plaintiff’s surgery and was specifically tasked with neuromonitoring during the surgery. Par. 29 alleges that Defendant failed to exercise the degree of knowledge and skill ordinarily possessed and exercised by other similar neuromonitoring providers.

Cross-Complainant Arjo, Inc.’s Cross-Complaint asserts Equitable Indemnity, Comparative Equitable Indemnity, and Apportionment of Fault against Alpha Diagnostics.

Standard

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

Merits

Where the moving party produces competent expert opinion declarations showing that there is no triable issue of fact on an essential element of the opposing party's claim, the opposing party's burden is to produce competent expert opinion declarations to the contrary. (Ochoa v. Pacific Gas & Elec. Co. (1998) 61 CA4th 1480, 1487.) 

Defendant produces the expert opinion declaration of Kevin Ehrhart, M.D. The court finds that Ehrhart is a qualified expert. (Ehrhart Decl., Pars. 2-3.) Ehrhart declares that “no act or omission by Ms. Stevens [Alpha Diagnostic’s neuromonitor] or the personnel of defendant Alpha Diagnostics was a substantial factor in causing the injuries claimed by the Plaintiff.” (Id. at Par. 11.)

Plaintiff filed a Notice of Non-Opposition.

In opposition, Cross-Complainant, Arjo, Inc. produces the expert declaration of Kenneth A. Solomon, Ph.D. The court finds that Solomon is a qualified expert. (Solomon Decl., Pars. 1-2.) Solomon opines that: “Had the… neuromonitoring technician properly checked Plaintiff Eubanks' lower extremities, the inverted application of the electrodes on Plaintiff Eubanks' lower extremities and any alleged unintended application of pressure… would, more probable than not, have been discovered; moreover, Plaintiff Eubanks' right leg injury would have been avoided… Ms. Stevens [was] aware of the decreased signals (on Mr. Eubanks' legs) from the neuromonitoring before the surgery even started; yet… Stevens failed to properly check Mr. Eubanks' legs during the entire course of the cervical surgery. Their failure to check Mr. Eubanks' legs prevented the abnormal condition of the right leg from being discovered…. The fact that Ms. Stevens incorrectly attached the electrodes to Mr. Eubanks' ankles would complicate the issue, making it less likely for the right leg to have been checked properly because the signals were incorrectly routed to the portal for the left leg. This would also have prevented the abnormal condition of the right leg from being discovered.” (Id. at Par. 6.)

Accordingly, based on the evidence presented, triable issues exist regarding whether Alpha Diagnostics caused the injury, and as such, triable issues exist on Arjo, Inc.’s cross-claims for indemnity and apportionment.

Summary judgment is DENIED.

Case Number: BC692445    Hearing Date: December 19, 2019    Dept: SEC

EUBANKS v. DOES 1 to DOES 50

CASE NO.: BC692445

HEARING: 12/19/19

#6

TENTATIVE ORDER

Cross-Defendant KAISER FOUNDATION HOSPITALS’ unopposed Motion for Summary Judgment is OFF-CALENDAR. A Notice of Settlement of Cross-Complaint against KAISER FOUNDATION HOSPITALS was FILED on December 5, 2019.

Moving Party to give notice.