On 05/04/2018 STEVEN PETITT filed a Labor - Other Labor lawsuit against METRO WATER DISTRICT OF S CA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DALILA CORRAL LYONS and DAVID J. COWAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DALILA CORRAL LYONS
DAVID J. COWAN
PETTIT BRIAN DECEASED
OC MEDICAL CENTER
YONG JOHN T. MD
PARSA THOMAS MD
PARANDA AMANDA PA-C
METROPOLITAN WATERDISTRICT OF SOUTHERN
DOES 1 TO 100
KUTSUNAI BRIAN MD
YONG JOHN T.
KUTSUNAI BRIA MD
YONG JOHN T. M.D.
PARSA THOMAS M.D.
HINMAN JOHN S.
HINMAN JOHN S
HENRY TORRES JR ATTNY AT LAW
CLYDE & CO US LLP
HOLM MARGARET M.
WEND CHRISTOPHER P
FRANZEN MARK VICTOR
TORRES HENRY JR
FRANZEN MARK V.
STURGES JENNIFER LANE
11/9/2020: Notice of Ruling
10/20/2020: Opposition - OPPOSITION TO DEFENDANTS, THOMAS PARSA, M.D., AMANDA PARANDA, PA-C, AND OC MEDICAL CENTERS MOTION FOR SUMMARY JUDGMENT AND ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POIN
1/16/2020: Notice Re: Continuance of Hearing and Order
1/29/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice
3/2/2020: Motion for Summary Judgment
3/2/2020: Separate Statement
8/28/2019: Other - - RULING: AUGUST 28, 2019 RE: DEFENDANT BRIAN KUTSUNAI, M.D.'S MOTION FOR SUMMARY JUDGMENT
8/28/2019: Order - ORDER GRANTING DEFENDANT JOHN T. YONG, M.D.'S MOTION FOR SUMMARY JUDGMENT
6/12/2019: Notice - NOTICE EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT, JOHN T. YONG'S MOTION FOR SUMMARY JUDGMENT
6/12/2019: Motion re: - MOTION RE: MOTION TO REQUIRE PLAINTIFF TO POST AN UNDERTAKING PERSUANT TO CODE OF CIVIL PROCEDURE SECTION 1030
5/8/2019: Notice - NOTICE OF COURT'S MINUTE ORDER
5/8/2019: Notice - NOTICE OF ENTRY OF JUDGMENT
1/7/2019: Proof of Service by Mail
1/3/2019: Minute Order - Minute Order (ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVIC...)
12/13/2018: Other - - Ruling for December 13, 2018
9/24/2018: NOTICE RE: CONTINUANCE OF HEARING
10/1/2018: DECLARATION OF HENRY TORRES, JR. IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES
10/1/2018: NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA'S DEMURRER TO
Hearing02/22/2021 at 09:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing02/10/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing01/07/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Post-Settlement Status ConferenceRead MoreRead Less
DocketNotice of Change of Address or Other Contact Information; Filed by John S Hinman (Attorney)Read MoreRead Less
DocketNotice of Ruling; Filed by Steven Petitt (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion for Summary Adjudication (and Alternative Motion for Summary Adjudication, Filed by Defendants, Thomas Pasa MC, Amanda Paranda PA-C and OC Medical Center,) - Held - Motion DeniedRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Adjudication and Alternative Mo...)); Filed by ClerkRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Steven Petitt (Plaintiff); Brian Pettit (Plaintiff)Read MoreRead Less
DocketRuling: November 3, 2020; Filed by ClerkRead MoreRead Less
DocketResponse (PLAINTIFF, STEVEN PETTIT?S RESPONSE TO DEFENDANTS? EVIDENTIARY OBJECTIONS RE MOTION FOR SUMMARY JUDGMENT); Filed by Steven Petitt (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/SummonsRead MoreRead Less
DocketORDER TO SHOW CAUSE HEARINGRead MoreRead Less
DocketOSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Steven Petitt (Plaintiff); Brian Pettit (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES 1. EMPLOYMENT DISCRIMINATION ;ETCRead MoreRead Less
Case Number: BC704919 Hearing Date: November 03, 2020 Dept: 20
Judge David J. Cowan
Date: Tuesday, November 3, 2020
Case Name: Steven Pettit et al. v. Metro Water Dist. et al.
Case No.: BC704919
Motion: Summary Judgment
Moving Party: Defendants Thomas Parsa, M.D. et al.
Responding Party: Plaintiff Steven Pettit
Ruling: The Motion for Summary Judgment is DENIED.
Plaintiff to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.
On May 4, 2018, Plaintiff Steven Pettit, as the personal representative and heir of Decedent Brian Pettit, filed a Complaint against Defendants Metropolitan Water District of Southern California (“MWD SoCal”), OC Medical Center, Thomas Parsa, M.D., Amanda Paranda, PA-C, Brian Kutsunai, M.D., John T. Yong, M.D., and Does 1-100, stating claims for employment discrimination, failure to accommodate, failure to engage in an interactive process, and medical malpractice. The employment claims were stated against MWD SoCal and Does, and the medical malpractice claim was made against the remaining Defendants.
On December 21, 2018, Plaintiff filed a First Amended Complaint against the same Defendants stating the same four claims.
On March 2, 2020, Defendants OC Medical Center, Thomas Parsa, M.D., and Amanda Paranda, PA-C (hereafter “Defendants”) filed a Motion for Summary Judgment on the medical malpractice claim.
On October 20, 2020, Plaintiff filed an Opposition and evidentiary objections to Defendants’ supporting declarations.
On October 29, 2020, Defendants filed a Reply and evidentiary objections to Dr. Traughber’s Declaration.
On November 2, 2020, Plaintiff filed a Response to the Evidentiary Objections.
Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no triable issues of material fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of proof by presenting facts to negate or establish an essential element of each claim at issue. (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.)
Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material fact exists. (CCP § 437c(o)(2).) “Materiality is measured by the law applicable to the legal theories put in issue by the complaint [or petition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1094.) Factual issues are immaterial if they are “outside the scope of the pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986) 176 Cal.App.3d 1601, 1065.)
In “any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.’” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
“[T]he qualification of an expert is ordinarily a matter addressed to the sound discretion of the trial court.” (Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 127.) “The determinative test . . . is whether the witness has disclosed sufficient knowledge of the subject to go to the jury.” (Id.; Seneris v. Haas (1955) 45 Cal. 2d 811, 833.) In order “[t]o qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and (2) is familiar with the standard required of a physician under similar circumstances.” (Id. at 128.) “The unmistakable general trend in recent years has been toward liberalizing the rules relating to the testimonial qualifications of medical experts.” (Brown v. Colm (1974) 11 Cal.3d 639, 645.) “[A] physician was deemed qualified as an expert if he could testify to the practice in a similar community.” (Id. (citing Sinz v. Owens (1949) 33 Cal.2d 749, 756.) “Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent.” (Evans, supra, 39 Cal.App.3d at 128.)
The outcome of this Motion hinges largely on the evidentiary value of the Declaration of Dr. Traughber submitted by Plaintiff in support of his Opposition. “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of California (1989) 215 Cal.App.3d 977, 984.) Defendants have provided such declarations here. Significantly, “when considering the declarations of the parties' experts, [the courts] liberally construe the declarations for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-26 (emphasis added))
Here, Defendants identify several defects in Dr. Traughber’s Declaration. Defendants contend the Declaration “fails to set forth his medical experience in working with and supervising physician assistants in the clinical setting” and “fails to identify his medical experience in working and treatment of patients . . . with respect to . . . cardiovascular risk factors.” (Reply, p. 2.) Defendants contend the Declaration is “speculative and lack[s] foundation” as to causation. (Id.) Finally, Defendants contend the Declaration contains “conclusory causation opinions . . . beyond his medical expertise and scope as a family physician” in offering cardiology opinions. Defendants object that Dr. Traughber failed to “set forth the basis of his medical experience to establish medical qualifications to render such cardiology opinions.” (Id. at p. 2.)
These arguments are not persuasive. As to the first argument, Dr. Scherger’s Declaration is equally silent as to prior experience “in working and treatment of patients . . . with respect to . . . cardiovascular risk factors.” Dr. Scherger merely alleges in conclusory terms that he is “familiar with the standard of care . . . as it applied to a patient similar to patient / decedent, Brian Pettit.” (Scherger Decl., para. 2.) The Court is unaware of any authority that only a physician assistant can testify against another physician assistant, or that it is necessary for a general practitioner to indicate he has experience supervising physician assistants. Indeed, here, Dr. Paras signed off on the physician assistant’s chart, indicating Dr. Paras checked and approved the assistant’s work in any event. Thus, Dr. Traughber is not testifying as to the actions of an assistant in a vacuum, but as to actions explicitly approved by a doctor operating in the same field as Dr. Traughber.
Further, it is a matter of common understanding that family medicine practitioners are generalists familiar with various areas of medicine. The role of a family practitioner and primary care provider is to be the first line of defense against more specialized medical issues—to notice a patient’s “red flags” and refer to a specialist. Dr. Traughber has testified that, as a family medicine practitioner, he found decedent’s labs and office visits “presented . . . with numerous risk factors for cardiac disease” for at least four years (2012-2016). (Traughber Decl., para. 5.a.)
It is not “critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent.” (Evans, supra, 39 Cal.App.3d at 128.) Here, Dr. Traughber is not a generalist testifying against a specialist. Dr. Scherger is also a family medicine practitioner. (See Scherger Decl. at para. 1-2). Dr. Traughber, as a family medicine practitioner, shares the same area of expertise as Dr. Scherger in testifying as to the applicable standard of care. Further, Dr. Traughber is testifying as a generalist against another generalist—Dr. Paras, a family medicine practitioner. Dr. Traughber testified that Defendants missed cardiac red flags that, as medical generalists, they should have noticed and acted upon—an area clearly within Dr. Traughber’s area of expertise.
It is not necessary for Dr. Traughber to establish expertise specifically dealing with cardiac risk factors. He must only establish “the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and . . . familiar[ity] with the standard required of a physician under similar circumstances.” (Id.) Dr. Traughber is undoubtedly familiar with the standard required of a family practice physician. (Traughber Decl., para. 2.) Further, he has “professional knowledge . . . of the subject under inquiry,” here, the presence of risk factors requiring the generalist to send the patient to a specialist. Specific expertise as to cardiology may be required to testify as to the cause of decedent’s death, but it is not required for testimony that a generalist missed plain risk factors.
Relatedly, the second and third objections to Dr. Traughber’s causation testimony are not significant (whether or not meritorious) because it is is unnecessary to reach Dr. Traughber’s cardiological observations. Defendants’ causation argument is entirely based on the premise that Defendants “complied with the standard of care.” Defendants argue that such compliance shows there was no breach which could have caused decedent’s death. (Motion, p. 10.) Defendants do not address the underlying cardiology—unlike Dr. Traughber—in arguing they did not cause decedent’s death. In the context of a summary judgment motion, the Court must consider Plaintiff’s evidentiary showing only to the extent it may create a triable issue of fact. There are no cardiological observations for Dr. Traughber to rebut in order to create a triable issue of fact; only compliance with the standard of care is relevant at this stage. Thus, if Dr. Traughber’s Declaration is sufficient to create a triable issue as to whether Defendants’ conduct complied with the standard of care, then Defendants’ causation argument necessarily fails because the causation argument is merely an extension of their standard of care argument.
In sum—Dr. Traughber’s testimony is adequate to create a triable issue of fact as to whether Defendants’ conduct fell below the standard of care. Defendants have not presented any facts negating causation, other than arguing that their conduct was within the standard of care. (Motion, p. 10 (“Because Ms. Paranda and Dr. Parsa complied with the standard of care, Dr. Scherger and Ms. Huddleston stated that to a reasonable degree of medical probability no alleged breach of the standard of care, alleged omission, or alleged neglect caused or was a substantial contributing factor to the decedent's death”); Scherger Decl., para. 19 (“to a reasonable degree of medical probability, no alleged breach of the standard of care and alleged omission . . . caused or substantially contributed to [Pettit’s] death”); Huddleston Decl., para. 18 (same.)) Defendants have not presented medical facts going to causation. Thus, it is unnecessary for the Court to consider Dr. Traughber’s observations as to the likely cardiological factors which caused decedent’s death.
Defendants rely upon Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480 in challenging Plaintiff’s expert declaration. In Ochoa, the defendant argued the trial court erred in granting summary judgment by relying on an “equivocal and speculative” declaration by Dr. Reddy as to the effects of a gas leak on the plaintiff. (Id. at 1485.) Dr. Reddy testified he had “[a] ‘feeling’ that the leak of some unspecified gas ‘probably aggravated her respiratory problems,’ because he [did] ‘not know of any more medically probable cause.’” (Id.) The Court of Appeal found this “insufficient to create a triable issue of fact” and “insufficient to rebut the unequivocal testimony of two qualified experts” testifying to the contrary. (Id.) Specifically, the defendant offered the declarations of Dr. Baselt, “a toxicologist . . . familiar with the properties of methane gas,” and Dr. Raffin, a “pulmonary and critical care medical specialist” who “specifically declared that he is familiar with the properties of methane gas and odorants.” (Id. at 1486-87.)
Specifically, the Court of Appeal identified three defects in Dr. Reddy’s declaration. First, “the declaration [did] not provide any basis on which one could conclude that Dr. Reddy was familiar with methane gas or any other type of gas.” (Id. at 1487.) “Second, Dr. Reddy did not express his opinion with any reasonable degree of medical certainty,” instead framing his testimony in terms of “feeling” and speculation based on the fact that he “kn[ew] of no other probable cause for her symptoms.” (Id.) Third, “Dr. Reddy was laboring under a misconception as to the type of gas to which appellant alleged she had been exposed.” (Id.) “Dr. Reddy sp[oke] only of the ‘gas leak’ without specifying the type of gas to which she was allegedly exposed,” which showed that his expert “opinion [was] based on the mistaken conclusion that appellant was exposed to nitrogen dioxide and not simple methane gas.” (Id. at 1488.)
Ochoa is distinguishable here. First, Defendants have not pointed to any clear error or misconception in Dr. Traughber’s testimony. By contrast, in Ochoa, there was unrebutted evidence that Dr. Reddy’s opinion was based on the wrong gas. Second, Dr. Traughber’s testimony is framed in terms of a “reasonable degree of medical probability.” (Traughber Decl., para. 5.) His testimony as to the standard of care for referring a patient with cardiac risk factors was not based on “speculation” from the lack of other probable causes; it was based on decedent’s documented medical history from 2012 through 2016 which contained several indicia of cardiological issues. Third, as a generalist family medicine practitioner, there is some basis to conclude that Dr. Traughber “was familiar with” cardiac red flags in patients. The Court recognizes that Dr. Traughber fails to specifically allege such experience. However, “when considering the declarations of the parties' experts, [the courts] liberally construe the declarations for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff.” (Powell, supra, 151 Cal.App.4th at 125-26 (emphasis added))
Accordingly, the Court OVERRULES Objections 1, 2, 3, 4, 5, and 7 to Dr. Traughber’s Declaration. The Court SUSTAINS Objection 6 to Dr. Traughber’s unsupported and speculative statements regarding the likely results of a cardiology workup and likely follow-up treatment. However, as discussed above, the Court does not need to reach Dr. Traughber’s cardiac causation conclusions here where Defendants offered no contradictory testimony for Dr. Traughber to rebut on this point.
The Court OVERRULES Plaintiff’s Objections 1 and 2 to the Declaration of Ms. Huddleston. While the passages are vague in isolation, they are not conclusory when read relative to the entire Declaration—which lays sufficient basis for Ms. Huddleston’s conclusions.
Application to Facts
In view of the foregoing, the Motion for Summary Judgment is DENIED. The elements of medical malpractice are duty, breach, causation, and injury. (Hanson, supra, 76 Cal.App.4th at 606.) Defendants have presented facts negating the element of breach by adducing evidence their conduct was within the standard of care, see Schlenger Decl., but have not presented further facts negating duty, causation, or injury. Defendants instead argue that their breach could not have caused injury because there was no breach. (Motion, p. 10.) Thus, the burden shifts to Plaintiff to “show via specific facts that a triable issue of material fact exists.” (CCP sec. 437c(o)(2).)
Plaintiff, by way of the Traughber Declaration, has presented facts establishing a triable issue of material fact as to whether Defendants’ conduct was within the standard of care. Specifically, as a family medicine practitioner like Dr. Parsa, Dr. Traughber testified that the applicable standard of care required a referral to a cardiologist for a patient like decedent who presented with several significant cardiac risk factors for years. This testimony is sufficient to create a triable issue of material fact as to whether Defendants breached the duty of care in failing to timely refer decedent to a cardiologist. This case is not analogous to Ochoa, supra in that Dr. Traughber’s testimony is more well-supported than Dr. Reedy’s testimony; further, Dr. Traughber is testifying as to and against doctors in his field of expertise (family medicine), unlike the allergist in Ochoa testifying against toxicologists. The Court does not find the Declaration conclusory or speculative, and it is sufficient to create a triable issue of fact. Therefore, the Motion must be denied.
The Motion for Summary Judgment is DENIED.
Plaintiff to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.