Place v. Bernstein CA2/3

Filed 7/18/13 Place v. Bernstein CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ERIC PLACE, B236424

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. NC054754)
v.

CLIFFORD BERNSTEIN,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith A.
Vander Lans, Judge. Reversed.
Mancini & Associates, Timothy J. Gonzales; Benedon & Serlin, Douglas G.
Benedon, Gerald M. Serlin and Wendy S. Albers for Plaintiff and Appellant.
Bonne, Bridges, Mueller, O’Keefe & Nichols and Joel Bruce Douglas for
Defendant and Respondent.
_________________________
 Plaintiff Eric Place sued defendant Clifford Bernstein, M.D., among others, for
medical malpractice after developing tachycardia following a procedure known as
accelerated opiate neuron-regulation (AONR) to detoxify from his chronic dependency
on Oxycontin. Place contended that his electrocardiogram (ECG or EKG)1 performed
before the AONR procedure revealed potential abnormalities that showed a
contraindication for the procedure. Dr. Bernstein brought a motion for summary
judgment supported by an expert’s declaration stating that he met the applicable standard
of care and did not cause Place’s transient cardiomyopathy. The trial court granted the
motion after sustaining Dr. Bernstein’s foundational objections to the admission into
evidence of the expert declarations Place submitted to oppose the motion. The trial court
determined that Place’s expert was not qualified to render an opinion and granted
summary judgment.
We conclude the trial court erred in excluding the expert declarations Place
submitted based upon the principles recently articulated in Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747 and in Garrett v. Howmedica
Osteonics Corp. (2013) 214 Cal.App.4th 173. We further conclude the expert’s
declarations create triable issues of fact precluding summary judgment. We therefore
reverse the judgment.
UNDISPUTED MATERIAL FACTS2
Place had a long-standing dependence on opiates, with a history of unsuccessful
efforts to get off narcotics. Place consulted with Dr. Bernstein regarding rapid
detoxification through the AONR procedure.

1
ECG is the English acronym, and EKG is the acronym from the German word
“Elektrokardiogramm.”
2
Place cites to his separate statement as the sole evidentiary support for some of his
factual assertions. “[A] separate statement is not evidence; it refers to evidence
submitted in support of or opposition to a summary judgment motion. In an appellate
brief, an assertion of fact should be followed by a citation to the page(s) of the record
containing the supporting evidence,” not to the separate statement. (Jackson v. County of
Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.)

2
 Rapid detoxification is a process where the “withdrawal from opiates is rapidly
done while the patient is under anesthesia, and the patient is given Naltrexone in an effort
to satiate the opiate receptors and thus cut-down on post-detox craving amid the
adjustment period which follows.” “The patient’s vital signs are perioperatively
controlled, inducing lower heart rates and blood pressure in contemplation of the
sympathetic storm which the body rapidly undergoes during the process of an accelerated
detoxification from opioid dependency.”
1. Pre-Procedure EKG and AONR Procedure
Place was admitted to Pacific Hospital of Long Beach (Pacific Hospital) on
March 30, 2009,3 where a medical history and physical examination was performed
before the AONR procedure. Place reported no history of cardiac symptoms. The
admitting EKG issued from Pacific Hospital’s cardiology department was reported to
indicate “[n]ormal sinus rhythm.”
The AONR procedure was performed the following day.
2. Post-Procedure Tachycardia
On April 2, two days after the AONR procedure, Place developed tachycardia, or
rapid heart rate, which is a known risk of the procedure. Place was treated by a
cardiologist.
Place was discharged from the hospital four days later when his heart function
returned to acceptable limits. The discharge summary signed by Dr. Bernstein indicates
the following: “The patient’s original baseline EKG was performed on admission,
03/31/09 [sic], and an official copy was placed on the chart indicating normal sinus
rhythm with a rate of 65. The patient did have a delayed progression across the V waves,
but it seemed to fit the patient body habitus which was tall and thin young male. Only
after the patient had a cardiac event noted below did the cardiologist over read the EKG
stating that there was a vertical axis T wave inversion in the anterior leads and may
possibly be ischemia.”

3
Unless otherwise indicated, all further dates refer to 2009.

3
 The baseline EKG (dated 3/30) included in the medical records reviewed by the
experts has handwritten notations stating: “vertical axis T-inversion Anterior
Leads . . . consider ischemia.” There also is a handwritten notation adding “ab” before
the term “normal” in the typed heading stating “NORMAL ECG.”4
Based upon these facts, Place filed a medical malpractice complaint against
Dr. Bernstein, Pacific Hospital, and the two cardiologists who treated him following the
AONR procedure.5
PROCEDURAL HISTORY
1. The Summary Judgment Motion
Dr. Bernstein filed a motion for summary judgment on two grounds: (1) Place
could not establish a breach of duty because Dr. Bernstein’s treatment met the applicable
standard of care; and (2) Place could not establish causation because nothing
Dr. Bernstein did, or failed to do, caused Place’s injury. In support of the motion,
Dr. Bernstein asserted that Place had been “adequately evaluated and worked-up and
prepared for the procedure,” within the standard of care, and Place’s cardiac event was a
known risk of the AONR procedure. In opposition, Place countered that Dr. Bernstein’s
treatment fell below the standard of care because he failed to read the baseline EKG,
which showed potential abnormalities, failed to have the baseline EKG read by a
cardiologist before the AONR procedure, and because the baseline EKG showed
potential abnormalities, failed to cancel the AONR procedure to conduct further tests.
According to Place, Dr. Bernstein’s failure to read the baseline EKG and take the
appropriate steps was the cause of Place’s injury.

4
There is no indication in the record when these handwritten notations were made,
but it is undisputed that this occurred after the AONR procedure.
5
The cardiologists were dismissed from the lawsuit. The trial court granted the
summary judgment motion filed by Pacific Hospital. Place did not appeal.

4
 In support of the motion, Dr. Bernstein submitted the declaration of board certified
anesthesiologist Ronald Wender, M.D., who is trained and experienced in performing
ultra-rapid opiate detoxification. No objections were made to Dr. Wender’s declaration.
In opposition, Place submitted the declaration of Robert Kahn, M.D., board
certified family practitioner. Dr. Kahn is a professor with the UCLA School of Medicine,
affiliated with several Los Angeles area hospitals, and an “expert medical consultant”
with the Medical Board of California. Objections were filed concerning Dr. Kahn’s
qualifications to render an opinion.
2. Dr. Wender’s Declaration in Support of the Summary Judgment Motion
Dr. Wender reviewed Place’s medical records. On the basis of his education,
training in ultra-rapid opiate detoxification, and experience in performing hundreds of
these procedures, Dr. Wender opined that Place was evaluated within the applicable
standard of care before undergoing the AONR procedure. Dr. Wender noted that Place
had “what was reported [as] a normal electrocardiogram.” After what Dr. Wender
describes as the “post-procedure cardiac event,” he stated that a cardiologist read the
EKG to find T-wave inversions in leads VI through V3. Dr. Bernstein, however, did not
have the cardiologist’s interpretation of the EKG until after Place had been medically
cleared for the AONR procedure with a “normal” EKG. Dr. Wender stated the
cardiologist’s “interpretation is a non-specific finding, which can represent a normal
variant, and it is not, without more, a contraindication for AONR.”
Dr. Wender stated the AONR procedure is a stress to the organs, which is why
before undergoing the procedure, the patient’s heart rate is lowered through the use of
Clonidine because the body responds to detoxification with elevated heart rates and high
blood pressures. Dr. Wender noted Place’s “heart responded to the detox with an
intermittent subclinical cardiomyopathy secondary to the stress of AONR.”
Dr. Wender was of the opinion that in treating Place, Dr. Bernstein complied with
standard of care, and Dr. Bernstein “was not a proximate, legal or substantial factor in
causing the complication which Mr. Place experienced, itself a known, inherent risk” of
the AONR procedure.

5
 3. Dr. Kahn’s Declaration in Opposition to the Summary Judgment Motion
Dr. Kahn also reviewed Place’s medical records and stated, based upon his
training and experience as a family practitioner and clinical professor at UCLA, that he
was familiar with the standard of care for physicians, nurses, and hospital staff. Dr. Kahn
noted the baseline EKG performed before the AONR procedure revealed “a potential
serious abnormality.” He stated that “[w]ithout further definition of the abnormal EKG,
the AONR procedure was contraindicated because,” the “AONR procedure is extremely
stressful on the heart.” “As such, physicians, nurses and medical staff must make sure a
patient’s heart is in optimum condition prior to undergoing the AONR procedure.” Based
on the foregoing, Dr. Kahn opined that Dr. Bernstein’s medical treatment was below the
standard of care.
Dr. Kahn further opined: “It is also my opinion, to a reasonable degree of medical
probability that Defendant Bernstein’s failure to meet the standard of care caused
Plaintiff’s congestive heart failure, which was manifested by an ejection fraction of 20%
and an elevated BNP following the AONR procedure on March 31, 2009.”
4. The Summary Judgment Motion Hearing
The trial court announced its tentative decision granting the summary judgment
motion based upon Dr. Wender’s expert testimony. In response, Place’s counsel argued
Dr. Kahn’s declaration created a triable issue of fact because he stated the abnormal EKG
was a contraindication for the AONR procedure. The court responded that objections had
been raised concerning Dr. Kahn’s qualifications, and Dr. Kahn failed to establish any
“knowledge regarding . . . the standard of care for anesthesia, cardiology or rapid detox,
nor any specific knowledge as to the standard of care relating to the AONR procedure.”
In response, Place’s counsel cited Evans v. Ohanesian (1974) 39 Cal.App.3d 121, for the
proposition that it did not matter whether Dr. Kahn is a general practitioner or a specialist
so long as he has knowledge of the subject matter.
The trial court took the matter under submission and gave both parties the
opportunity to brief Evans v. Ohanesian, supra, 39 Cal.App.3d 121.

6
 5. Dr. Kahn’s Supplemental Declaration
After the matter was submitted, Place filed Dr. Kahn’s supplemental declaration in
which he stated he was familiar with the AONR procedure, having read and researched
the indications, contraindications, and potential complications of that procedure.
Objections were posed to the submission of this supplemental declaration.
6. The Trial Court’s Ruling Granting Summary Judgment
The trial court concluded that, based upon Dr. Wender’s expert testimony,
Dr. Bernstein met his burden to establish he had complied with the standard of care and
no act or omission on Dr. Bernstein’s part had caused the cardiac event Place experienced
after the AONR procedure.
Place, however, failed to create a triable issue of fact because the trial court
sustained objections to Dr. Kahn’s declaration on the ground that he was not qualified to
render the opinions offered in his declaration. The ruling states: “Defendant has
properly objected to this declaration as Dr. Kahn fails to establish that he has any
knowledge regarding the standard of care for anesthesia, cardiology or rapid detox, nor
any specific knowledge as to the standard of care relating to the AONR procedure.
Dr. Kahn merely states that he is board certified in family medicine, he is a professor at
UCLA, he holds an appointment as an expert medical consultant to the Medical Board
and he is in private practice. Dr. Kahn offers no facts to establish that he is qualified to
render an opinion regard[ing] the AONR procedure, anesthesia or cardiology. As such,
Dr. Kahn has not sufficiently established that he is qualified to render an opinion as to the
care and treatment provided to Plaintiff by Dr. Bernstein and Plaintiff has submitted no
other admissible evidence to raise a triable issue of material fact in opposition to
Dr. Bernstein’s motion.”
The trial court also sustained the objections to Dr. Kahn’s supplemental
declaration on the ground that Place was not given leave of court to submit additional
evidence.
Place timely appeals from the judgment entered following the trial court’s order
granting Dr. Bernstein’s motion for summary judgment.

7
 DISCUSSION
Place contends the trial court erred in granting the summary judgment motion
because Dr. Kahn was qualified to testify, and Dr. Kahn’s declarations established triable
issues of material fact regarding Dr. Bernstein’s breach of the duty of care and causation.
More specifically, Place contends that Dr. Bernstein breached his duty of care when he
(1) missed a potentially serious cardiac abnormality in the EKG before the AONR
procedure; (2) failed to consult a cardiologist before the AONR procedure; and (3) based
upon the abnormal EKG, failed to conduct further testing before performing the AONR
procedure. Because Dr. Bernstein failed to meet the standard of care, Place maintains he
suffered tachycardia following the AONR procedure.
1. Governing Standards of Review
We review the trial court’s grant of summary judgment de novo. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860) (Aguilar). Summary judgment is
proper when the evidence shows the nonexistence of a triable issue of material fact and
the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,
subd.(c); Aguilar, supra, at p. 843.) To satisfy this burden, a defendant moving for
summary judgment must establish that one or more of the elements of a cause of action
cannot be established or that a complete defense exists to the cause of action. (Code Civ.
Proc., § 437c, subd. (o); Aguilar, supra, at p. 850.) If the defendant meets this burden,
the burden shifts to the plaintiff to show a triable issue of material fact exists as to either
the particular cause of action or the proffered defense. (Aguilar, supra, at p. 850.)
In determining whether the parties have met their respective burdens, the court
must consider all of the evidence, except that to which objections have been made and
sustained by the court, and all inferences reasonably deducible from the evidence, except
summary judgment may not be granted by the court based on inferences reasonably
deducible from the evidence, if contradicted by inferences or evidence, which raise a
triable issue as to any material fact. (Code Civ. Proc., § 437c, subd. (c).) “There is a
triable issue of material fact if, and only if, the evidence would allow a reasonable trier of

8
fact to find the underlying fact in favor of the party opposing the motion in accordance
with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.)
“ ‘ “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.” ’ [Citation.]” (Powell v.
Kleinman (2007) 151 Cal.App.4th 112, 123.)
In summary judgment proceedings, the weight of authority holds that appellate
courts review evidentiary rulings under an abuse of discretion standard.6 (Miranda v.
Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.) A court’s decision to
exclude expert testimony is also reviewed for abuse of discretion. (Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) While the
qualification of an expert witness requires the trial court to exercise its discretion, the
court abuses its discretion by denying qualification if the witness demonstrates sufficient
knowledge of the subject to entitle his or her opinion to go before the jury. (Id. at
p. 472.)
2. Dr. Bernstein’s Expert Declaration Shifted the Burden
Healthcare providers must exercise the degree of skill, knowledge, and care
ordinarily possessed and exercised by members of their profession under similar
circumstances. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 122.) 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

6
If the trial court does not rule on evidentiary objections, we review de novo
objections raised on appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.) In Reid v.
Google, the Supreme Court left open the question of whether a trial court’s rulings on
evidentiary objections based on papers alone in summary judgment proceedings are
reviewed for abuse of discretion or de novo. (Ibid.)

9
between the negligent conduct and the resulting injury; and (4) actual loss or damage
resulting from the professional’s negligence.’ [Citation.]” ’ [Citation.]” (Ibid.)
Dr. Bernstein moved for summary judgment on the grounds that Place could not
establish a breach of duty or a causal connection between his treatment and Place’s
injury. To support his motion, Dr. Bernstein submitted expert testimony that the trial
court concluded satisfied his burden. We agree with the trial court that the expert’s
declaration was sufficient to shift the burden to Place to raise a triable issue of fact.
3. Place Met His Burden to Show Triable Issues of Fact Exist
a. Dr. Kahn is Qualified to Render an Opinion
Place contends the trial court erred in concluding that Dr. Kahn’s declarations
lacked foundation because he was not an anesthesiologist, cardiologist, or experienced
with the AONR procedure and therefore not qualified to testify on the standard of care to
which Dr. Bernstein was held.7 Place maintains the trial court misunderstood his case.
His theory was that the applicable standard of care did not require specialized knowledge
because Dr. Bernstein’s alleged breach was the failure to read the baseline EKG before
performing the AONR procedure.
“The rule that a trial court must liberally construe the evidence submitted in
opposition to a summary judgment motion applies in ruling on both the admissibility of
expert testimony and its sufficiency to create a triable issue of fact.” (Garrett v.
Howmedica Osteonics Corp., supra, 214 Cal.App.4th at p. 189; see also Powell v.
Kleinman, supra, 151 Cal.App.4th at pp. 125-126.)

7
The supplemental declaration Place submitted addressed Dr. Kahn’s familiarity
with the AONR procedure and his training related to interpreting EKG studies. These
omissions from Dr. Kahn’s first declaration were pointed out during the hearing on the
motion for summary judgment. Although the trial court did not give Place leave to
submit a supplemental declaration, the court permitted additional briefing, which focused
on the legal proposition that a generalist is qualified to render an opinion with a showing
of practical knowledge. Dr. Kahn’s qualification to render an opinion based on practical
knowledge was a point clarified in the supplemental declaration. Thus, we conclude it
was an abuse of discretion not to consider the supplemental declaration in ruling on the
motion for summary judgment.

10
 In a medical malpractice case, a person is qualified to testify if he or she has
special knowledge, skill, experience, training, or education sufficient to qualify on the
subject to which the testimony relates. (Evid. Code, § 720, subd. (a).) This special
knowledge, skill, experience, training, or education may be shown by any otherwise
admissible evidence. (Evid. Code, § 720, subd. (b).) An expert may base his or her
opinion on any matter “that is of a type that reasonably may be relied upon by an expert
in informing an opinion upon the subject to which his testimony relates, unless an expert
is precluded by law from using such matter as a basis for his opinion.” (Evid. Code,
§ 801, subd. (b).)
Citing Miller v. Silver (1986) 181 Cal.App.3d 652, Place maintains that reading
and interpreting an EKG addresses a matter of shared medical ability or basic knowledge
of all physicians, such as the role of prophylactic antibiotics for patients prior to surgery.
(Id. at p. 661.) As far as this proposition goes, we agree that Dr. Kahn is qualified to
testify as an expert if the standard of care is so broadly defined.
Here, however, the standard of care must be determined in the context of the
decision to perform the AONR procedure. Therefore, the standard of care is gauged by
what is usually and customarily done by physicians performing AONR procedures
presented with a pre-procedure baseline EKG that was reported as “normal.” (See Sinz v.
Owens (1949) 33 Cal.2d 749, 753.) Liberally construing Dr. Kahn’s declarations, while
he had never actually performed the AONR procedure, he had practical knowledge that
the AONR procedure was stressful on the heart. “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.”8

8
The Evans court further stated: “The reason for not requiring specialization in a
certain field is obvious. Physicians are reluctant to testify against each other. [Citations.]
Consequently, when an expert can be found, it is immaterial whether he is a general
practitioner or a specialist providing he has knowledge of the standard of care in any
given field; otherwise, the plaintiff could never prove a case against a specialist unless he
11
(Evans v. Ohanesian, supra, 39 Cal.App.3d at p. 128.) Dr. Kahn had sufficient
knowledge to opine on whether having been presented with Place’s baseline EKG, even
though reported as normal, the study was a contraindication for the AONR procedure or,
at a minimum, required further patient evaluation before performing the procedure. The
degree of his knowledge goes more to the weight of the evidence than to its admissibility.
Thus, the trial court erred in concluding that Dr. Kahn was not qualified to testify as an
expert.
b. Dr. Kahn Addresses Breach of Duty and Causation
In a medical malpractice action, if a plaintiff establishes negligence he must prove
the defendant’s negligence was a cause-in-fact of the injury. (Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) “ ‘[C]ausation
must be proven within a reasonable medical probability based [on] competent expert
testimony. Mere possibility alone is insufficient to establish a prima facie case.’ ” (Ibid.)
Dr. Kahn reviewed the EKG and medical records, as did the defense expert.
Dr. Kahn stated that Dr. Bernstein failed to read the EKG, and if he had, he would have
discovered that the EKG reflected a potentially serious abnormality, which required
further testing or a referral to a cardiologist before performing the AONR procedure.
Dr. Bernstein’s treatment, therefore, constituted a breach of the standard of care. “This is
so because the AONR procedure is extremely stressful on the organs, including the heart,
and therefore the pre-AONR procedure work up must be extremely cardio-protective.”
Dr. Kahn’s expert opinion establishes a triable issue of fact as to the issue of negligence.
The trial court, however, also concluded that as a matter of law, Place could not
prevail because “no act or omission on behalf of Dr. Bernstein caused any injury to
Plaintiff.” The defense expert stated the complications Place experienced were a known
risk following the AONR procedure, which occurs in the absence of negligence.

had an expert of the particular specialty . . . .” (Evans v. Ohanesian, supra,
39 Cal.App.3d at pp. 128-129.)

12
Dr. Bernstein, therefore, was not a proximate, legal, or substantial factor in causing the
complications that Place experienced.
On the issue of causation, Dr. Kahn reached the opposite conclusion, that is,
Dr. Bernstein’s “failure to meet the standard of care caused Plaintiff’s congestive heart
failure.” Because we concluded Dr. Kahn’s declaration raises issues of fact with respect
to whether Dr. Bernstein breached the standard of care, Dr. Kahn’s opinion on causation
is adequately supported.
Dr. Bernstein contends that Dr. Kahn’s conclusion is not based upon a reasoned
explanation, especially because he does not dispute that tachycardia is a known risk of
the AONR procedure. The argument advanced is that Dr. Kahn’s declaration, at most,
showed an alternative treatment method when presented with Place’s baseline EKG, and
did not explain what treatment should have been given to avoid a known risk of the
AONR procedure. Specifically, Dr. Bernstein argues that Dr. Kahn “needed to further
show that what Dr. Bernstein did in his care for [Place] was something no other respected
specialist would have done under same or similar circumstances, or that Dr. Bernstein
failed to do something all reputable practitioners would have exclusively and uniformly
done in this case.” Dr. Bernstein overstates the necessary showing to oppose a summary
judgment motion.
In Powell v. Kleinman, supra, 151 Cal.App.4th 112, the court reversed a summary
judgment in favor of a defendant doctor in a malpractice case because the trial court
erroneously excluded evidence from the plaintiff’s expert’s declaration opposing
summary judgment. (Id. at pp. 127-128.) The court stated that while a defendant’s
expert’s declaration has to be detailed and with foundation in order to obtain a summary
judgment, a plaintiff’s expert’s declaration in opposition to a summary judgment motion
does not have to be detailed and is entitled to all favorable inferences. (Id. at p. 125.)
The court emphasized that “we liberally construe the declarations for the plaintiff’s
experts and resolve any doubt as to the propriety of granting the motion in favor of the
plaintiff.” (Id. at pp. 125-126.) In Powell, the plaintiff’s expert “opined that it is
medically probable [that defendant’s] care and treatment caused [plaintiff] injury.” (Id. at

13
p. 129.) “However obtuse [the expert’s] declaration may appear, as a party opposing
summary judgment, [plaintiff] is entitled to all favorable inferences that reasonably may
be derived from it, which includes a reading of the declaration to state that [plaintiff’s]
injuries were caused by [defendant’s] conduct, which conduct fell below the applicable
standard of care.” (Ibid.)
Recently, our division decided Garrett v. Howmedica Osteonics Corp., supra,
214 Cal.App.4th 173, in which the plaintiff brought a products liability action against the
supplier of a prosthetic bone. We reversed summary judgment in favor of the defendant.
The defendant argued that the plaintiff’s expert declaration was not admissible because it
lacked a reasoned analysis as he did not describe the testing methods used to reach his
conclusion. (Id. at 185.) We acknowledged the court’s gatekeeping responsibility for
expert testimony as set forth by the Supreme Court in Sargon Enterprises, Inc. v.
University of Southern California, supra, 55 Cal.4th at page 781. (Garrett v. Howmedica
Osteonics Corp., supra, at pp. 186-187.)
Unlike Sargon, in which the trial court conducted an evidentiary hearing before
excluding expert testimony, Garrett involved the exclusion of expert testimony presented
in opposition to a summary judgment motion. We concluded the absence of more
specific information on the expert’s testing methods did not justify the exclusion of his
testimony on the grounds that his conclusions were speculative, conjectural, or lacked a
reasonable basis. (Garrett v. Howmedica Osteonics Corp., supra, at pp. 187-189.) In
reaching this conclusion, we reiterated that “[i]n light of the rule of liberal construction, a
reasoned explanation required in an expert declaration filed in opposition to a summary
judgment motion need not be as detailed or extensive as that required in expert testimony
presented in support of a summary judgment motion or at trial.” (Id. at pp. 183, 189.)
As in Garrett, we conclude the trial court failed to liberally construe the evidence
submitted in opposition to the summary judgment motion. Dr. Kahn not only concluded
it was more probable than not that Dr. Bernstein’s failure to read the EKG before
performing the AONR procedure caused Place’s cardiac event, but he also stated the
failure to consult with a cardiologist or to conduct additional medical tests before

14
performing the AONR procedure was below the standard of care. Dr. Kahn’s opinions
should not have been omitted or deemed insufficient at the summary judgment stage.9
DISPOSITION
The judgment is reversed. Place is entitled to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

9
We render no opinion on the merits or on evidentiary issues that might arise at
trial.

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