Unpublished Disposition, 904 F.2d 711 (9th Cir. 1988)

MEMORANDUM^* 

Plaintiffs Beverly Yocom, Angela Marie Yocom, and Karrie Louise Yocom (collectively, "plaintiffs") appeal from the grant of summary judgment for defendant Frank E. Cole, M.D. They contend that evidentiary rulings made by the district court in their medical malpractice action were an abuse of discretion. Plaintiffs also contest the grant of summary judgment for defendant.

BACKGROUND FACTS

In March 1983, defendant Frank E. Cole, M.D. prescribed Accutane for Angela Yocom ("Angela"), who was then fourteen years of age. He had no information to suggest that she was sexually active. When she became pregnant, he was not informed she had. On January 12, 1984, Angela gave birth to Karrie Yocom ("Karrie"). Karrie was born with severe birth defects and, at five years of age, she suffers from a number of developmental dysfunctions.

Plaintiffs brought this action on May 5, 1986, claiming negligence. Despite numerous attempts by Cole to ascertain the identify of plaintiffs' experts, plaintiffs failed to comply. Finally, three weeks before the discovery cut-off date of March 29, 1988, plaintiffs informally identified Drs. Edward Lammer¹  and J. Albert Browder as experts on causation and Richard Lahti as an expert on standard of care.

Lahti, a physician licensed to practice in Oregon and California, was identified as plaintiffs' only expert on the standard of care. At his deposition he indicated that he had not seen any of the plaintiffs. Lahti opined that he would not have prescribed Accutane. The bases for his opinion included an Accutane brochure, a package insert, a report on studies of Accutane, affidavits filed in the case, and the Physicians' Desk Reference. He admitted that he was unaware of the dosage of Accutane prescribed for Angela. More importantly, he admitted that he did not know the standard of care in Washington.

Cole moved for summary judgment. In opposition to this motion, plaintiffs filed Lahti's declaration, which stated that Lahti had now familiarized himself with the Washington standard of care and that the care administered to Angela fell below the standard for "a reasonably prudent internist practicing in the State of Washington during March through May, 1983." The court granted Cole's motion to strike the declaration. It then granted Cole's motion for summary judgment, for, without Lahti's testimony, plaintiffs had failed to satisfy their burden of proof on standard of care. Plaintiffs filed timely notice of appeal from the judgment and order granting summary judgment, which were subsequently amended to correct a clerical error. The amendment does not affect our jurisdiction over this appeal. Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983).

DISCUSSION

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). Evidentiary rulings, including those within the context of a summary judgment motion, are reviewed for an abuse of discretion. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 806 (9th Cir. 1988).

Wash.Rev.Code Sec. 7.70.040 (West Supp.1989) defines the elements of medical malpractice as follows:

(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;

(2) Such failure was a proximate cause of the injury complained of.

Expert testimony is essential to proof of both of these elements. Shoberg v. Kelly, 1 Wash. App. 673, 463 P.2d 280, 282 (1969), rev. denied, 78 Wash. 2d 992 (1970).

Expert testimony is admissible on summary judgment only if the opinion is supported by facts sufficient to satisfy the requirements of Fed. R. Civ. P. 56(e). It is not enough to simply opine; the factual basis must be stated. United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981). See also McGlinchy, 845 F.2d at 806-08 (experts' testimony on damages excluded; no attribution of damages to relevant conduct); Bulthius v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985) (per curiam) (factual basis stated).

When these standards are applied to Lahti's declaration, it is clear that it was properly excluded because Lahti failed to state the basis of his opinion. Although he stated he was familiar with the records, Lahti did not state what in those records demonstrated Cole's failure to exercise the requisite standard of care. Nor did he state what the standard was.²  These deficiencies were particularly telling, since just weeks before he had indicated that he did not have the requisite knowledge about that standard. At the time of the deposition, he had also admitted that he had not examined the minor plaintiffs and did not know what dosage of Accutane had been prescribed. He did not say that it should never be administered, and agreed that some dosages would be safe.

Moreover, the court expressed its concern about the deficient character of the Lahti affidavit almost two full weeks before the summary judgment hearing. Instead of addressing the court's concerns, plaintiffs filed the same declaration two days before the hearing. The court did not abuse its discretion when it excluded the affidavit.

Plaintiffs contend that the standard for sanctions under Fed. R. Civ. P. 37 was not satisfied. It is true that the district court also noted that Lahti's declaration, filed at such a late stage, gave Cole no opportunity to seek additional depositions or expert testimony, and even at that late date, plaintiffs had failed to "state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion," as required by Fed. R. Civ. P. 26(b) (4) (A) (i). However, the district court's action was not a discovery sanction; rather, it was an exclusion of evidence for lack of competency.

Finally, plaintiffs assert that Cole did not submit evidence on the standard of care, with the exception of his own affidavit. This complaint is misdirected. A party moving for summary judgment who does not bear the burden of proof need not adduce evidence to show the nonmoving party's inability to satisfy its burden of proof, but need only point out the, "absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Cole identified defects in plaintiffs' proof and adduced his own declaration on the standard of care. Plaintiffs then had to make a showing that was sufficient to support the essential elements of their case. Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 841 F.2d 872, 876 (9th Cir. 1987), cert. denied, --- U.S. ----, 109 S. Ct. 79, 102 L. Ed. 2d 55 (1988).

Without Lahti's declaration, there was no evidence concerning Cole's failure to satisfy the standard of care. Lahti's deposition did not create an issue of fact regarding the Washington standard of care, since at that time he did not know what the standard was. Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wash. 2d 438, 663 P.2d 113, 118 n. 4 (1983) (en banc). Therefore, summary judgment was properly granted on this issue.

CONCLUSION

Plaintiffs did not submit admissible evidence on the standard of care issue. Therefore, the district court did not err when it granted summary judgment to the defendant.

AFFIRMED.