Clarke v. Prenger

BAKES, Justice,

dissenting:

This case is very similar to Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988). Reference is made to my concurring opinion therein for an in-depth discussion of the applicable law. At this juncture, however, it bears repeating that in summary judgment proceedings I.R.C.P. 56(e) requires that, “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. ” (Emphasis added.)

I dissent because the affidavits of plaintiff's expert witness, Dr. Rattray, failed to demonstrate that he has the qualifications necessary to testify as an expert in this case. An adequate foundation was not laid by the mere inclusion of his conclusory statement, e.g., “I am generally familiar with the standards of medical care expected____” Rather, an adequate foundation is laid only when an affidavit initially sets out the facts necessary for a court to rule on an expert affiant’s qualifications. Casey v. Highlands Ins. Co., 100 Idaho-505, 508, 600 *770P.2d 1387, 1390 (1979) (“Where an affidavit merely states conclusions and does not set out facts, such supporting affidavit is inadmissible to show the absence of a genuine issue of material fact.”).

There are multiple reasons for the inadequacy of Dr. Rattray’s affidavits. First, his specialty was different than the defendants’, and a medical expert in one field may not testify against a medical expert in another field unless he demonstrates that he knows the standards of the other specialty.1 The only statement in the affidavits which would even suggest that Dr. Rat-tray, an obstetrician-gynecologist, knows the standards applicable to Dr. Prenger, a board certified family practitioner, and Dr. Yonkosky, a board certified general surgeon, is Dr. Rattray’s own conclusory statement that “I am familiar with the professional standard of care applicable to the physicians Prenger and Yonkosky____” There is absolutely no factual foundation laid for Dr. Rattray’s conclusion, nor are there any facts set out explaining how he gained his familiarity with the applicable standard of care for family practitioners and general surgeons. Accordingly, his affidavit is insufficient.

Particularly, Dr. Rattray made no factual showing of how he became aware of the local standard of care applicable to these defendants’ specialties in the area serviced by the local hospital, in this case the East Shoshone Hospital, serving the Wallace/Kellogg area. I.C. § 6-1013. Dr. Rattray claims that he learned these defendants’ standard of care while he was training for his own different medical specialty. However, there are again no factual statements to support his conclusory opinion in his affidavit. Furthermore, this cause of action accrued in the early 1980’s in Silverton, Idaho, and is far removed, in both time and place, from Dr. Rattray’s training and experience in Pullman, Washington, in 1974.

I also dissent to the analysis propounded by the majority. First, ante at 768, 760 P.2d at 1184, the majority asserts that once an affidavit is rendered sufficient by the affiant’s conclusory statement regarding his knowledge of local standards, then it is up to the defendant to establish deficiencies in the plaintiff’s case by taking the deposition of the plaintiff’s witness. However, this runs contrary to the rule requiring the plaintiff to initially establish his case with admissible evidence.

Secondly, the majority approvingly cites four cases from other jurisdictions. Ante at 768-769, 760 P.2d at 1184-1185. Even though cited for the proposition that Dr. Rattray was competent to testify regardless of his specialty, it should be noted that, without exception, in each case cited in the majority opinion a foundation regarding the expert’s qualifications was laid before the respective experts were allowed to testify at all. For example, inter alia, in Fitzmaurice evidence was presented establishing the expert as a practicing surgeon, specializing in breast cancer surgery. He was also shown to be a professor, a lecturer, an author of textbooks, a consultant, a member of a breast cancer task force, and the principal investigator of the Cooperative Breast Cancer Study Group. Likewise, each of the cited cases following Fitzmaurice contains a recital of the foundation that was laid prior to the expert’s testimony. The majority should follow the lead of its own cited cases.2

In sum, I continue to adhere to my views expressed in Pearson v. Parsons, supra. Specifically, in medical malpractice proceed*771ings, the affidavits must lay a factual foundation for the doctor’s qualifications before he is allowed to render his expert opinion. Here, the affidavit of Dr. Rattray does not lay an adequate foundation. Accordingly, his affidavit is deficient and his opinion expressed therein is not admissible. I would affirm the district court.

. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985), would not have let him testify at all. Nevertheless, the majority in Pearson v. Parsons, supra, effectively overruled what was left of Buck after our decision in Grimes v. Green, 113 Idaho 519, 746 P.2d 978 (1987).

. The majority attempts to dispose of this inconsistency by stating, "[Ejach of the above-cited cases did not involve summary judgment, but rather involved testimony of witnesses at trial where there could be, and was, a full development of their expertise____" Ante at 769, 760 P.2d at 1185. The cited cases and the instant case cannot be so distinguished, however. If anything, there is more need for an adequate foundation in a summary judgment proceeding than there is at a full trial because summary judgment lacks safeguards, such as cross examination and witness demeanor, that are available at trial.