In re Needles Cases

Filed 3/10/06 In re Needles Cases CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California nd parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In coordinated actions for negligence, battery, and related claims, the trial court granted summary judgment in favor of defendant SmithKline Beecham Corporation and SmithKline Beecham Clinical Laboratories (collectively SmithKline) against plaintiff Jane Doe8015 and Gerald Orzoff. Plaintiffs contend that the court improperly weighed the evidence and decided triable issues of fact--namely, whether a SmithKline employee's conduct caused Jane Doe8015 to be infected with HIV[1] and Orzoff to be infected with Hepatitis C. We agree with plaintiffs that summary judgment was not appropriate in these circumstances and must therefore reverse the judgments.

Background

In June 1997, using an employment placement service, SmithKline hired Elaine Giorgi to work as a phlebotomist at its laboratory facility in Palo Alto. Giorgi had been terminated from a Mills Hospital laboratory in October 1996 for poor performance, but after passing safety tests, she was allowed to work as the sole phlebotomist at SmithKline's Palo Alto site. In January of 1999, however, a second employee, Ana Dvorsky, was placed there. Around February 22 Dvorsky noticed that Giorgi was reusing needles on patients. [2] On two or three occasions Giorgi told Dvorsky to reuse needles because they were expensive, but Dvorsky refused. On February 24 and again around March 3, Dvorsky reported Giorgi to her supervisors. On March 23, 1999, the area manager and site supervisor investigated the allegations while Giorgi was absent. They found a basket containing seven to eight used "butterfly" needles. The needles had visible dried blood on them and had been placed back in their original packages.

In various interviews that followed, Giorgi readily admitted reusing blue butterfly needles. She was inconsistent in reporting the frequency and dates of this practice, however, and in some interviews she was "very defensive." Giorgi explained that she cleaned the used needles in a mixture of hydrogen peroxide and water.

On April 6, 1999 SmithKline terminated Giorgi for reusing needles, a "deliberate and reckless action [which] places our patients at risk." It then implemented a "Lookback Operations Plan for Patients Potentially Affected by Reused Needle Incident." It identified 3,600 patients who had been tested at the Palo Alto site (Cohort I), 612 patients from five sites at which Giorgi had worked alone between October 1994 and June 1997 (Cohort II), and 11,075 patients who had visited sites at which there were other phlebotomists besides Giorgi (Cohort III). This last category of patients was considered so unlikely to have been infected that further testing was not recommended, but in anticipation of the patients' reaction to the news of the reuse, SmithKline offered free testing to 9,550 of those patients to allay their concerns. Thus, anyone who might have had blood drawn by Giorgi was sent a notification letter, but Cohorts II and III were told that the risk of infection from Giorgi was extremely low.

Both plaintiffs participated in the Lookback screening program. Doe had had her blood drawn by Giorgi on December 31, 1997, and again on January 20, 1999. Orzoff had had blood drawn by Giorgi on September 1, 1998. Testing by an independent lab revealed that Doe had HIV.[3] In late April 1999 and May 1999 Orzoff tested positive for Hepatitis C (HCV), but subsequent test results were either "indeterminate" or negative. The parties' experts agreed that that Orzoff either had cleared the virus or had received false-positive HCV results.

Procedural History

Doe and Orzoff filed separate complaints against SmithKline on April 14, 2000. Both alleged negligence, negligence per se, battery, battery by lack of consent, intentional infliction of emotional distress, and negligent infliction of emotional distress. Orzoff added breach of fiduciary or special duty and unlawful business practices.

These cases were coordinated with hundreds of other claims, both class and individual actions. Discovery was stayed until after dismissal of those claims in which the plaintiffs did not allege that they had actually contracted a viral infection as a result of Giorgi's conduct.

After the stay was lifted, discovery was protracted and contentious. On May 21, 2003, Doe moved to compel responses to discovery, including requests for production of documents, requests for admissions, interrogatories, requests for inspection, and notices of deposition. Similar items were in dispute in Orzoff's case. Many of the requested materials pertained to company policies and supplies used in drawing blood at SmithKline's Palo Alto facility. SmithKline's opposition was based on the burdensome overbreadth of the requests and on the lack of evidence that either plaintiff was subjected to a reused needle. On June 13, 2003, the trial court denied plaintiffs' motions.

On July 16, 2003, Doe filed a second motion to compel compliance with her request for production of documents. She sought all documents and computer devices related to employee hiring, usage of butterfly needles and other supplies, employee evaluations and other personnel information, references to patients at the Palo Alto facility, and data storage information. Doe contended that SmithKline had waived its objections by failing to respond or by responding with an untimely blanket objection. SmithKline responded that Doe had either received the information she sought or she was repeating requests that had already been denied by the court. SmithKline again complained of the burdensome nature of the current request. Quest Diagnostics, Inc., which had acquired SmithKline in August 1999,[4] had retained backup tapes, but those contained confidential information, and locating specific information would take further "considerable effort" in addition to what SmithKline had already expended in the discovery process. Other materials, according to SmithKline, did not even exist. On September 8, 2003, the trial court denied Doe's second motion.

On September 16, 2003, Doe again moved to compel production of documents. This time she sought current and past policies and procedures used by SmithKline (a) in monitoring supplies, going back to April 1995; and (b) in screening, hiring, evaluating, retaining, and terminating phlebotomists, going back to January 1993. Two days later she moved to compel further responses to earlier interrogatories and requests for documents and to a fourth set of document requests. Doe asserted that SmithKline had provided vague, evasive, unverified, and incomplete responses. In opposition, SmithKline contended that Doe was making unreasonable demands without waiting for responses and without making efforts to meet and confer. Some of the requests, SmithKline stated, were for documents that were privileged, had already been produced, or simply did not exist (as established in previous requests).

Before the hearing on these motions, both plaintiffs sought an order compelling the deposition of David Bangsberg, M.D. Dr. Bangsberg was involved in devising the Lookback plan. He also was one of the authors, along with Travis Porco and others, of a published article on the reuse incident.[5] The study reported in the article, referred to by the parties as the "Porco Study," was a primary basis of SmithKline's position that needle reuse had not infected either plaintiff. Plaintiffs further sought to exclude that study from evidence.

Doe also moved to strike the declaration of Edward A. Kaufman, M.D., who had been Vice President and National Medical Director of SmithKline from 1994 to 2000. Dr. Kaufman's declaration, submitted in opposition to the first motion to compel, relied on the Porco Study for his view that Doe did not acquire HIV from Giorgi's needle reuse, but more likely was infected from "high-risk sexual behavior."

The trial court considered all of these motions together and denied them on December 2, 2003. Two weeks later, plaintiffs moved to compel production of documents improperly withheld by SmithKline. Plaintiffs wanted to communicate with four of the authors of the Porco Study (most of whom were government employees), including Dr. Bangsberg, but SmithKline had invoked attorney-client privilege and the work-product doctrine. In its opposition SmithKline stated that it had withheld only those documents that fell within Dr. Bangsberg's role as litigation consultant, primarily communications between Dr. Bangsberg and Dr. Kaufman. Other documents, SmithKline stated, had already been produced. Plaintiffs disputed this assertion, pointing to other communications that SmithKline continued to withhold. On February 11, 2004, the trial court denied plaintiffs' motion.

On March 1, 2004, SmithKline moved for summary judgment against both plaintiffs. In Doe's case, SmithKline asserted that she lacked substantial evidence that she had been exposed to HIV by Giorgi. As to Orzoff, SmithKline similarly argued that he lacked substantial evidence that a reused needle had transmitted HCV to him.

On the same day, SmithKline filed objections to plaintiffs' evidence, seeking to exclude a 1997 HIV test that had shown Doe to be free of the virus. In her opposition to the summary judgment motion, Doe moved to strike the declarations by two of SmithKline's experts; Orzoff similarly moved to strike a third. Doe also renewed her request to depose Dr. Bangsberg and asked to retake Dr. Kaufman's deposition. SmithKline followed with its own objections to evidence received from two of Doe's experts.

The trial court granted SmithKline's summary judgment motions and ruled for SmithKline on the evidentiary issues, sustaining the objections of SmithKline and overruling those of plaintiffs. It further declined Orzoff's request to amend his complaint to conform to arguments raised in his opposition to summary judgment. On August 11, 2004, the court entered judgments for SmithKline. This joint appeal followed.

Discussion

1. Discovery Motions

In the opening brief on appeal, plaintiffs appear to be challenging the rulings granting summary judgment, the exclusion of Doe's expert evidence, and the refusal to allow Orzoff to amend his complaint. Plaintiffs' introduction and summary of the procedural history suggest a further challenge to the denials of their multiple motions to compel responses to discovery. As to these rulings, however, the brief contains no separate argument, discussion of the standard of review, or attempts to apply appellate principles to the facts, beyond the bare assertion that the court abused its discretion or that its actions were arbitrary and capricious. Nevertheless, we have treated the procedural summary as argument and have carefully reviewed every motion, its opposition, the reply, and the transcript of the hearing on that motion. Our review is governed by the abuse-of-discretion standard. (Union Bank of California, N.A. v. Superior Court (2005) 130 Cal.App.4th 378, 388; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1261; 2,022 Ranch, L.L.C. v. Superior Court (2003) 113 Cal.App.4th 1377, 1387.) "The trial judge's application of discretion in discovery matters is presumed correct, and the complaining party must show how and why the court's action constitutes an abuse of discretion in light of the particular circumstances involved." (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432.) "The trial court's determination will be set aside only when it has been demonstrated that there was 'no legal justification' for the order granting or denying the discovery in question." (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.)

We are not convinced that abuse of discretion occurred here. There is no indication from the record that the court's rulings were arbitrary, capricious, or without legal justification. At the hearing on the first motion to compel, the trial court stated that its practice was to "err on the side of full presentation." The court permitted lengthy argument, written and oral, on each motion, and it specifically stated at each hearing that it had read all of the papers. While the grounds presented on behalf of plaintiffs were cogently argued, the court properly exercised its discretion in agreeing with SmithKline's position on each occasion.

2. Evidentiary Rulings

The parties heavily relied on expert opinion in supporting or opposing summary judgment. SmithKline offered Richard Stern, M.D. and Stephen L. Becker, M.D. as experts in their motion against Doe, and Emmet B. Keeffe, M.D. in the motion against Orzoff. Doe offered Paul David Stolley, M.D. and Patrick Joseph, M.D. As noted earlier, the trial court denied plaintiffs' motions to strike the declarations of SmithKline's experts and granted SmithKline's motions to exclude all expert-opinion evidence from Doe's experts. Plaintiffs challenge all of these summary rulings. Doe further asserts error in the court's granting of SmithKline's motion to exclude evidence of her negative HIV test in 1997 and in its refusal to exclude the Porco Study.

Dr. Stern was a cardiologist. Having reviewed Doe's medical records, he expressed doubt that the 1997 HIV test was based on a sample of Doe's blood. He was struck by the 98-point increase in total cholesterol from a test result five months earlier, and a 111-point decrease three months later. Nothing in Doe's medical history accounted for these "remarkable" differences, especially considering the little variation in her cholesterol levels between 1995 and 1999. Dr. Stern also noted a "significantly higher" measurement of a liver enzyme compared to tests before and after September 1997. Dr. Stern relied on his "understanding" that the previous tests were performed by licensed phlebotomists in qualified laboratories, whereas the September 1997 test was not. He believed that the blood sample on that occasion had been drawn at 10:15 p.m. at Doe's house and shipped to a Kansas laboratory for analysis.

In objecting to this declaration Doe protested that Dr. Stern was not qualified to testify about HIV testing or laboratory procedures in general, and that his opinion was based on speculation. Doe attached portions of Dr. Stern's deposition testimony, in which he admitted that he was not an expert on laboratory procedures and thus could only speculate about the process of obtaining and transporting blood samples. He also stated that he was not an expert on HIV and did not know the details of HIV testing. Consequently, he did not know whether the same technician and the same equipment were used for cholesterol and HIV tests. He could say with a reasonable degree of medical certainty that the cholesterol result was wrong, even though he did not know how the laboratory calculated the LDL in 1997 or whether the standard correction factor worked on non-fasting samples. Dr. Stern had no opinion about whether the HIV test was correct, though in view of the cholesterol results the HIV result was "thrown into suspicion."

We agree with Doe that she presented adequate grounds to cast doubt on the reliability of Dr. Stern's opinion regarding the 1997 HIV test. Under Evidence Code section 801, expert opinion must be "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming 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." However, the appellate court reviews rulings on admissibility of evidence for abuse of discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) Thus, we may not disturb the trial court's ruling on the admissibility of the proffered opinion evidence absent an abuse of discretion. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928.) The trial court's determination entails an assessment of the foundation of the opinion. If the proffered expert evidence is relevant and material and a proper foundation for it has been laid, it is error to exclude it. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.) "Conversely, the courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion." (Ibid.) Here, while Dr. Stern may have been limited in his ability to testify about HIV testing procedures and the circumstances of Doe's 1997 test, the court was authorized to admit the opinion regarding the discrepant cholesterol measurements as some evidence relevant to the question of whether it was Doe's blood sample that was being reported on that occasion. Since an adequate foundation for that opinion was laid, it was not error to allow it.

Dr. Becker stated in his declaration, citing a 1997 journal article, that the prevalence of HIV in the United States is "about one-third of one percent (0.0032)." He also stated, citing the Porco Study, that "[t]he transmission rate of HIV from a needlestick with a needle known to contain fresh blood from a person known to be HIV positive is from one-quarter of one percent (0.0025) to one-half of one percent (0.005)." Based on these statistics, Dr. Becker expressed the opinion that "the likelihood that anyone was infected with HIV by Giorgi is between 1.4 chances in 100 million and 6.8 chances in 1 million." He did not delimit the temporal or geographical parameters of the population on which this estimate was based beyond the Porco Study data and "known prevalence and transmission rates." Dr. Becker also stated that "[a] needle cannot transmit HIV if it is not contaminated with bodily fluids capable of transmitt[ing] the HIV." He did not delineate the conditions under which those fluids are capable of transmitting HIV, but he did explain that in order to become contaminated, the needles had to have contacted the blood of an infected person. He also noted that "HIV contamination of a needle will not remain transmissible for a long period of time," though he did not specify how long.

Dr. Becker then suggested other ways Doe "could have" contracted HIV. Referring to her deposition testimony, he pointed out that "Doe 8015 testified to 'experimental' sexual intercourse with a homosexual man who tested positive for HIV at a time which indicated he may have had HIV when he had sexual intercourse with Doe 8015. For many years, Doe 8015 has suffered from bipolar disorder and was subject to manic episodes. One of her treating doctors said the 'main feature' of her manic behavior was 'reckless and promiscuous behavior.' Doe 8015 testified that she contracted genital herpes in her teens. Since the beginning of the HIV epidemic, there has been a strong epidemiological association between HIV and other sexually transmitted diseases ('STDs'), with at least a 200% to 500% increased risk of HIV in persons with STDs. This is especially true for people with STDs that ulcerate or tend to produce 'sores,' such as genital herpes because the ulcers along the genital tract facilitate transmission of HIV. Doe 8015 testified to many sexual partners after contracting genital herpes in her teens. Doe 8015 testified that she did not always use condoms and she did not know the HIV status of many partners with whom she did not use condoms. Any one of Doe 8015's multiple sexual encounters since the early 1980s could have resulted in transmission of HIV." Dr. Becker went on to point out that even when condoms are used they are not completely effective at preventing HIV transmission, and that the virus can be transmitted through anal and oral intercourse.

Dr. Becker also addressed the 1997 HIV test. At least one HIV test available in 1997 was later taken off the market. Some laboratories at this time used tests that were not approved by the FDA. Doe's records, he noted, did not indicate which HIV test was used, so "we cannot know the sensitivity rate for the test. Moreover, laboratory error (e.g., substituted specimens) can cause false negatives."

Doe objected to portions of Dr. Becker's declaration on several grounds: Several of his statements were not made "with the required reasonable degree of medical certainty"; his opinions were not based on his own perceptions or personal knowledge; and the documents attached to his declaration were inadmissible hearsay. Accordingly, Doe argued, all of Dr. Becker's opinions should have been deemed to be grounded on inadmissible conjecture or speculation.

We agree with Doe that many of Dr. Becker's statements were based on matters of which he had no personal knowledge-- in particular, the assumption that Doe had engaged in risky sexual behavior that increased her risk for contracting HIV. We believe, however, that the trial court could admit the declaration for summary judgment purposes to the extent that it relied solely on admissible evidence and disregarded hearsay, unreliable statistical data, and conjecture derived from unfounded assumptions. Admitting the declaration at this stage would not automatically preclude an evidentiary objection at the trial stage, or at least exposure of the flaws in the foundation or reasoning underlying the expert's conclusions. In any event, Dr. Becker's opinion is merely relevant evidence on a disputed issue of fact and does not in itself compel summary judgment.

We reach the same conclusion regarding the Porco Study, on which Dr. Becker heavily relied. The study provided some evidence that the probability that Giorgi infected Doe with HIV was extremely low. The court did not abuse its discretion in admitting the study either by itself or as a basis for expert opinion.

Dr. Keeffe also relied on the Porco Study in expressing his opinion that Orzoff was "far more likely" to have been infected by a source other than Giorgi. In addition, Dr. Keeffe reviewed Orzoff's medical records and suggested that Orzoff had other risk factors for HCV, namely his prior experience with acupuncture therapy and endoscopic medical procedures. Dr. Keeffe also stated that most people with HCV are unaware that they are infected because they are asymptomatic, and about 10 percent of HCV patients are unable to identify the source of their infection. We see no abuse of discretion in admitting this evidence for purposes of summary judgment.

By the same token, however, there is no reason to exclude contrary expert testimony bearing on the inadequacies of design, methodology, or conclusions reached in the Porco Study, or on the application of those conclusions to either plaintiff's case. In moving to strike SmithKline's expert opinions and the Porco Study itself, Doe relied on her own expert, Dr. Stolley. In his declaration Dr. Stolley noted that the model for the Porco Study was "an attempt to roughly quantify population risk and was never intended to apply that risk to any specific individual attending the phlebotomy laboratory site." In addition, the study depended on "numerous assumptions, [any of which] can be questioned and challenged." For example, the study relied on scenarios involving needle sticks among hospital personnel rather than estimates of transmission among persons who share needles, such as heroin addicts. While acknowledging that heroin users expose themselves to risk more frequently, Dr. Stolley nonetheless maintained that transmission among hospital personnel is "much lower" than among intravenous drug users. Accidental needlesticks, he explained, "are rarely intravenous but tend to be subcutaneous and far less risky. As the SmithKline contaminated needles were placed directly into the patients' vein[s], it is my opinion that the transmission probability is closer to that of heroin users who share needles than it is to accidental needlestick populations." Dr. Stolley also criticized the assumption that the sample of those returning for Lookback screening was representative of the overall population, since he believed that those at high risk or those already aware of a positive HIV status would be less likely to attend the screening program.

Dr. Stolley concluded "to a reasonable degree of medical and scientific certainty" that the Porco Study was unreliable as a measure of any individual's causation. He further expressed the opinion (also to a reasonable degree of medical and scientific certainty) that the cause of Doe's HIV infection was "more likely than not" Giorgi's needle reuse. He noted that the medical literature contained numerous reports of HIV infection attributed to contaminated blood-drawing needles or syringes.

SmithKline objected to these conclusions as speculative and without foundation. It maintained that there was no evidence connecting the needle reuse to the blood draw of Doe, no evidence that a contaminated needle was used on her, and no evidence that viable HIV remained on any contaminated needle that might have been used on her. SmithKline insisted that a "reasonable explanation" for Doe's HIV status existed, that she contracted the virus in the 1980s. SmithKline criticized Dr. Stolley's logic as well as the evidentiary assumptions from which his reasoning was derived.

SmithKline's objections were well argued, but they accomplished no more than Doe's challenge to Dr. Becker's opinion. Whatever flaws exist in the data, reasoning, and inferences on which the parties' experts relied only underscore the factual discrepancies that form the evidentiary foundation of their respective conclusions. We can see no reasoned explanation for admitting Dr. Becker's declaration yet excluding that of Dr. Stolley. We will therefore examine all admissible evidence supplied by both experts in our de novo review of SmithKline's summary judgment motion as to Doe.

Likewise, we see no basis for excluding the 1997 HIV test or Dr. Joseph's opinion regarding the reliability of the test results. SmithKline was entitled to expose the defects in collection procedure, transportation, or analysis of the blood sample taken from Doe in September 1997. Indeed, Dr. Stern's declaration raised concerns about the possibility of such defects. However, SmithKline's objections to the evidence provided by Dr. Stolley and Dr. Joseph reveal factual assumptions that bear upon critical issues in dispute. Doe was entitled to present contrary evidence through Dr. Joseph's declaration and deposition testimony, along with other evidence bearing on the chain of custody, in order to raise a triable issue on the validity of the 1997 test results.

The same reasoning applies to the evidence pertaining to Orzoff. Dr. Keeffe's opinion regarding the sources of any HCV infection was useful in evaluating the ability of Orzoff to establish SmithKline's negligence.[6] Dr. Joseph, however, also provided testimony regarding whether Orzoff contracted the virus from Giorgi's needle reuse. The factual assumptions underlying his conclusions draw into focus the key points of dispute between the parties. We will include Dr. Joseph's opinion along with that of Dr. Keeffe in determining whether SmithKline is entitled to summary judgment against Orzoff.

3. Summary Judgment

a. Scope and Standards of Review

The gravamen of SmithKline's summary judgment motion against each plaintiff was that plaintiffs could not establish their claims because they lacked substantial evidence of causation. SmithKline's position, which it adheres to on appeal, mischaracterizes the procedures and principles governing determination of summary judgment motions. Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no merit--that is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subds. (a), (p)(2).) When the burden of proof at trial will be on the plaintiff by a preponderance of the evidence, for summary judgment "the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence' " to support a necessary element of the cause of action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, quoting Aguilar v.. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

If the defendant fails to meet this initial burden, it is unnecessary to examine the plaintiff's opposing evidence; the motion must be denied. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59-60.) However, if the defendant makes a prima facie showing that justifies a judgment in its favor, the burden then shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) "The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." (Code Civ. Proc., § 437c, subd. (p)(2).)

On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) We apply the same procedure used by the trial court: We examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) "We need not defer to the trial court and are not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale." (Knapp v. Doherty, supra, 123 Cal.App.4th 76, 85.)

Because summary judgment review is defined by the issues raised in the pleadings, we first direct our attention to the material allegations of each plaintiff's complaint.

b. Doe's Pleadings

Doe's negligence claim encompassed the allegations that SmithKline had breached its duty to draw her blood in accordance with the law and standard medical practices and to ensure that its personnel were properly qualified, trained, and supervised. SmithKline had breached that duty by failing to perform blood extractions in a legal and medically acceptable manner; by failing to screen, train, and supervise its phlebotomists; and by failing to take prompt remedial action. Doe further alleged negligence per se, based on violations of statutes and regulations governing clinical blood extractions and disposal of medical waste.[7] The reuse itself constituted battery and battery by lack of consent, negligent infliction of emotional distress, and intentional infliction of emotional distress.

c. SmithKline's Showing against Doe

SmithKline urged the court to grant summary judgment against Doe because she lacked "substantial evidence that she was exposed to HIV by [SmithKline]." On appeal, SmithKline maintains this position, arguing that the judgment should be affirmed because "the evidence is insufficient to allow a reasonable jury to find it more likely than not" that she contracted HIV from a reused needle. The summary judgment order (drafted by SmithKline) reflects this view, finding that Doe's causes of action "are without merit because plaintiff has insufficient evidence to establish that Doe's infection was caused by Giorgi." The court acknowledged that "it is possible" that a reused needle was used on Doe, but "it is also undisputed that it is possible plaintiff contracted HIV from one of her own sexual partners." Because the "probabilities" were at best "evenly weighted," the court found that summary judgment was warranted.

It makes no difference whether the "probabilities" are evenly weighted or favor SmithKline. A triable issue exists on the question of causation. SmithKline's experts, along with the Porco Study, suggest that it is unlikely that Doe was infected by a reused needle. But "unlikely"--even "highly unlikely"-- is not a negation of the causation element. In order to shift the burden to Doe, SmithKline must show not only that Doe currently possesses no evidence that she was infected by Giorgi, but also that she will be unable to obtain such evidence sufficient to permit a jury to find in her favor. That is, SmithKline must "present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. . . . The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence--as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But . . . the defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855, italics added.)

In light of this important condition, SmithKline's showing is inadequate. That Doe is unable to identify the needle used to draw her blood does not eviscerate her claim. While such evidence would have been ideal, she can still prove her case if the trier of fact is able to infer from the available evidence that Doe acquired HIV from a contaminated needle used by Giorgi. "The court has no power in a summary proceeding to weigh one inference against another or against other evidence . . . ." (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 841.) Even if the inferences SmithKline draws are "reasonably deducible from the evidence," summary judgment is not justified if they are "contradicted by other inferences or evidence, which raise[s] a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c).) "The moving party's evidence must leave no room for conflicting inferences as to material facts." (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)

The opinion evidence supplied by SmithKline's experts is insufficient to meet its burden. Dr. Stern did not establish that Doe already had HIV when Giorgi drew her blood, even if the validity of the 1997 HIV test was in doubt. Dr. Becker's opinion regarding the low probability of infection by Giorgi was based on the Porco Study and on speculation as to ways Doe "could have" contracted HIV, which in turn depended on factual assumptions regarding her past sexual behavior. These opinions might make Doe's case more difficult to prove at trial, but they were insufficient to require a reasonable trier of fact to find that Doe's theory was, more likely than not, incorrect.

SmithKline's point that Doe could have acquired HIV from a past sexual partner is also derived partly from Doe's admissions that she had contracted genital herpes as a teenager; that she had not always used condoms, "especially in the long ago past;" that it was possible she could have forgotten a 1992 sexual experience due to her bipolar disorder; and that she had had "experimental" sexual intercourse in late 1982 or early 1983 with a man who had been diagnosed with HIV in late 1986. She did not recall "dating" a man who had "promise" in 1991. SmithKline, however, used medical notes in Doe's patient records to point to other sexual experiences Doe may have had during the 1990s. It further emphasized that HIV was more easily transmitted to someone with genital sores produced by herpes.

Doe may have her work cut out for her at trial, but at this summary judgment stage, the evidence falls short of establishing either that Doe was HIV-positive before Giorgi drew her blood or that Doe will be unable to prove she was free of the virus at that time. Postulating the "more likely possibilities" about the source of her infection, the "strong epidemiological association" between HIV and other sexually transmitted diseases, the "doubt" and "serious questions" raised about the 1997 negative HIV test, the memory problems that "might have caused her to forget her sexual experiences," and sources of infection that are "far more likely" than needle reuse does not add up to the presentation of "evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact [of causation] was true." (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003.) SmithKline thus failed to establish that Doe would be unable to prove her claim.

Even assuming that it was sufficient for SmithKline to show that infection by Giorgi was "extraordinarily unlikely," we believe that Doe met her burden to raise a triable issue of fact on the causation element of her claim. She is not required at this stage to show that she has "substantial evidence that her HIV infection was more likely than not caused by Giorgi"; we are not reviewing a nonsuit order or a jury verdict. All Doe needs to do is produce evidence that discloses the existence of a triable issue of material fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.) It was not for the trial court to weigh the "probabilities" and find one side more convincing. Nor was it the court's role even to determine whether Doe's evidence was substantial. As noted earlier, summary judgment may not be based on even reasonable inferences, "if contradicted by other inferences or evidence, which raise[s] a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c).) "Neither, apparently, may the court grant [a defendant's] motion based on any evidence from which such inferences are drawn, if so contradicted. That means that, if the court concludes that the plaintiff's evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendants' motion." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.)

Thus, whether Doe's evidence is sufficient to convince either a reasonable jury or this court that Giorgi infected her is not the proper question before us. We therefore reject SmithKline's premise that Doe's burden required her to present evidence "sufficient to support a finding that her HIV was caused by Giorgi's blood draw."

In her opposition, Doe sought to rebut the inference that she was already HIV-positive when Giorgi drew her blood on December 31, 1997 and January 20, 1999. To meet SmithKline's argument that the 1997 negative HIV test was invalid, Doe offered declarations from two employees associated with the laboratory that had processed the 1997 blood sample. Betsy Sears explained in detail how Osborn Laboratories had reached its conclusion that the chain of custody appeared to be intact. She also stated that at the time of Doe's test, the lab was using an FDA-approved ELISA screening test. Andy Lachtman, the phlebotomist who had drawn Doe's blood on that occasion, described the customary procedure he used when he drew a patient's blood at home, including the completion of forms and the practice of keeping the sample in his possession until ready for shipment to Osborn Laboratories. Lachtman also explained that he drew Doe's blood at 10:15 a.m., not 10:15 p.m.; he had checked the wrong box in indicating the time of the draw. One of the forms he filled out showed that he arrived at Doe's home at 10:05 a.m. Lachtman stated that he never went to a patient's home as late as 10 p.m. This clarification was useful to Doe because SmithKline had protested that the chain of custody was a matter of speculation.[8]

Doe's experts buttressed the use of the 1997 HIV test in opposition to summary judgment. Dr. Stolley testified that all the evidence he had seen convinced him that it was Doe's blood that was tested in 1997. Dr. Joseph was 99 percent certain that the blood tested in 1997 belonged to Doe. Dr. Joseph also believed that the chance of a false negative HIV result in 1997 was less than 1 in 100,000 or 1 in 150,000. Addressing Dr. Stern's concerns over the disparity in cholesterol readings, Dr. Joseph suggested that the divergent numbers could be explained by her diet or a laboratory error in the cholesterol test, which had nothing to do with the HIV test conducted in a different part of the laboratory.

Based on the results of the 1997 test, Dr. Joseph expressly disagreed with Dr. Becker's opinion that Doe had acquired HIV in the 1980s or early 1990s. He also stated that the Porco Study had "numerous flaws, numerous assumptions that don't apply to this case," such as the reliance on subcutaneous rather than intravenous needlesticks. Doe also pointed out that the authors of the study had relied on SmithKline for their data.

Doe also produced evidence from her physicians and her own discovery responses that she had no risk factors for HIV before her blood was drawn by Giorgi.[9] Dr. Joseph's review of Doe's medical history included patient records and the testimony of Roger Mateo, M.D., who had treated her from 1992 through 1999 and was unaware of any such factors. Doe's records indicated to Dr. Joseph that "she did not have any invasive surgical procedures performed after early 1997, she did not use intravenous drugs during this period of time or at any other time, and she did not have unprotected (or, in fact, protected) sex during the period from three months before her negative HIV test through the time of her first pos[itive] HIV test.[10] In his deposition Dr. Joseph expressed the opinion that the date of infection was more likely to be the December 31, 1997 blood draw rather than the January 20,1999 procedure.

Sutton Menezes, M.D., an infectious disease specialist who had treated Doe, took an extensive social history from her after her diagnosis. At his deposition he said that it had "struck" him that there were no other risk factors for HIV. He did not believe that Doe could be a "long-term nonprogressor"--that is, a patient with HIV "whose immune system remains intact far longer than the average"-- based on the pattern of decline of her T-cell count.[11] Doe had represented to Dr. Menezes that she had not had any sexual contact for several years.

In her deposition Doe tried to recall her sexual history. In the late 1960s and early 1970s there were about 15 occasions on which she would have sex with someone once and then not see him again. That might have happened once or twice in the late 1970s, but she recalled no such occasions in the 1980s and only one in the mid-1990s. Between 1983 and 1987 she was in a live-in relationship. She had two relationships in the late 1980s: in 1987 for eight to 10 months and in 1988 for one year. After that she had no sex until 1995; of that she was positive.[12] In 1995 she had a "one-time experience" with someone she had just met; she believed that this was the occasion on which she received a vaginal injury.

Her medical records indicated some dating and boyfriends during the early 1990s and included vague references to sexual activity. Doe admitted that she occasionally had difficulty remembering a person or event 25 years earlier. She did not know whether it was related to the Lithium she was taking for bipolar disorder; no doctor had ever told her that the drug might cause memory lapses. At the time she testified at her deposition, it was her short-term memory that often caused her difficulty.

Taken together, the evidence produced by both parties reveals the existence of a factual dispute on the material issue of causation. Even if the 1997 test is discredited, there remains an unresolved question as to whether Doe was HIV-positive before Giorgi drew her blood. It is for the trier of fact to decide which of the witnesses to believe, which documents accurately relate her sexual history, and what conclusions may be drawn about the date she acquired the virus. If Doe is successful in convincing a jury that she did not have HIV before Giorgi drew her blood, she may be able to create a basis for inferring that the virus was transmitted to her through a contaminated needle reused by Giorgi. Whether the circumstantial evidence is sufficient for this purpose is not a proper question for this court to address.

d. Orzoff's Pleadings

The allegations of Orzoff's complaint are themselves the subject of the parties' dispute on appeal. All of his claims for negligence, battery, and infliction of emotional distress echoed those of Doe, except that the result of SmithKline's tortious conduct toward Orzoff was that he "experienced physical harm, including contracting Hepatitis C, associated severe emotional distress, including but not limited to a reasonable, genuine, and serious fear of complications from this condition and general disruption of plaintiff's life." Orzoff further alleged breach of a fiduciary or special duty "to disclose all facts material to the patient's consent before proceeding with any medical procedures," and, "[b]y virtue of this relationship," a duty to draw blood in accordance with applicable laws and regulations. He also included an allegation that SmithKline's conduct was an unlawful and unfair business practice within the meaning of Business and Professions Code section 17200, et. seq.

In opposition to SmithKline's summary judgment motion asserting insufficient causation evidence, Orzoff recast his allegations. He argued that defendants had failed to discuss the notification letter he had received from Dr. Kaufman, which had caused him "mental anguish and distress." According to Orzoff, Dr. Kaufman had failed to inform him that the test results could be false positives or that there was a "real potential" for spontaneously clearing the infection. Essentially, the new theory was that Dr. Kaufman had caused Orzoff unnecessary "mental anguish and distress" by not reassuring him that he might not be in danger after all.

On appeal, Orzoff maintains these positions. We agree with SmithKline, however, that the specific deficiencies in Dr. Kaufman's letter were not the subject of Orzoff's complaint. Only two references to the notification procedures employed by SmithKline were made in the complaint. In the cause of action for negligence, Orzoff alleged that SmithKline had a duty to "provide immediate and complete notification of any and all risks to [patients'] health caused by Defendants' unsafe and/or unlawful performance of medical procedures." SmithKline had breached that duty by failing to provide "prompt and complete notification to Plaintiff of the dangers of infection with deadly viruses and other diseases." (Emphasis added.) This is not the same as failing to inform him that he might clear the virus spontaneously, or that he might not even be infected in the first place.

A properly drafted complaint "aver[s] the ultimate facts [that] constitute the cause of action or defense thereto. [Citation.] In a summary judgment proceeding the factual submissions of the parties must track these averments by providing evidence of the ultimate facts averred." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382.) "A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers." (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4.)

Orzoff nevertheless contends that the trial court should have permitted him to amend his complaint to add his new factual theory. We find no prejudicial error in the trial court's denial of the request. The court acted within the bounds of its discretion, whether its ruling was based on unjustified delay in the request or the lack of merit in the new theory. The new allegation, that Dr. Kaufman should have balanced his warning with positive information, was inconsistent with the prior allegation that Dr. Kaufman had breached his fiduciary duty to disclose the dangers and risks of infection. It was also inconsistent with the prior allegation that the result of Dr. Kaufman's negligence was HCV infection. Furthermore, if the damage caused by the failure to reassure him is only needless distress, the theory is unavailing in light of Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 995 (absent physical injury, emotional distress damages not recoverable for fear of a cancer that is not probable). We will disregard the new allegation in evaluating the adequacy of the summary judgment motion.

e. SmithKline's Showing against Orzoff

As in Doe's case, SmithKline took the position that Orzoff would not be able to show that Giorgi's needle reuse caused him to be infected with HCV. SmithKline argued that there was no evidence that his blood was extracted with a reused needle or that the needle was contaminated with HCV. SmithKline also relied on the Porco Study in claiming a remote chance of HCV infection, and it suggested other ways Orzoff "could have" been infected-- acupuncture therapy in the 1980s and endoscopic procedures performed with inadequately cleaned devices. SmithKline did not contend that Orzoff was unable to prove that he was infected with HCV in the first place.

In its statement of undisputed facts, which was based entirely on Dr. Keeffe's declaration, SmithKline included the following assertions: Orzoff "could have" contracted HCV from a source other than Giorgi; HCV is the most common chronic blood infection in the United States; most people with HCV do not know they are asymptomatic and therefore do not know they are infected; approximately 10 percent of HCV patients are unable to identify the source of their infection; and the proba