DAR Helps Secure Publication of Decision on Expert Witness Qualifications

Jim Weixel, of Demler’s Sacramento and San Francisco offices, recently helped secure publication of the Court of Appeal’s opinion in San Antonio Regional Hospital v. Superior Court (Musharbash), No. E082481 (4^th Dist., Div. 2). A member of the Amicus Committee of the Association of Defense Counsel of Northern California and Nevada (“ADCNCN”), Weixel co-authored a letter requesting publication of the opinion with ADCNCN’s counterpart, the Association of Southern California Defense Counsel (“ASCDC”).

In Musharbash, the plaintiff submitted a declaration from a surgical nurse to oppose the hospital’s motion for summary judgment. The hospital had argued that physicians did not breach the standard of care in assessing and responding to a patient’s traumatic brain injury which later led to his death. The Court of Appeal held that the plaintiff had failed to establish that the nurse was qualified to render an opinion on the standard of care applicable to TBI surgical responses or whether the hospital had breached it. Accordingly, the Court of Appeal reversed the trial court and ordered it to grant summary judgment.

The ADCNCN and ASCDC requested publication because the case explained the standards for admitting expert opinion testimony in the context of summary judgment, and to counter a recent trend in which the plaintiff’s bar offers declarations from witnesses whose expertise is often questionable or otherwise insufficient in highly technical areas such as medical malpractice. The publication of the Musharbash opinion can be expected to lend greater clarity on this issue to the trial courts and counsel.

The Court of Appeal’s opinion (not yet marked for publication) can be found here.