Filed 6/6/06 McGee v. Lin CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and 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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
| TIERRA McGEE, a Minor, etc., et al., Plaintiffs and Appellants, v. YEUAN-JONG LIN, Defendant and Respondent. |
F047613
(Super. Ct. No. CV252070)
O P I N I O N |
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
McNulty Law Firm and Daniel S. Glaser for Plaintiffs and Appellants.
LeBeau Thelen, LLP, Dennis R. Thelen and W. Steven Shayer for Defendant and Respondent.
-ooOoo-
Plaintiff Tierra McGee (Tierra) was born on July 20, 2000. She was delivered by her mother's longtime obstetrician-gynecologist (ob-gyn), defendant Dr. Yeuan-Jong Lin (Dr. Lin). During the delivery, a shoulder dystocia occurred.[1] Dr. Lin applied two medical techniques and the shoulder dystocia was quickly resolved. The entire delivery took place inside a minute. Unfortunately, Tierra suffered brachial plexus injuries as a complication of the shoulder dystocia. Tierra and her mother, X-Ann McGee (X-Ann) brought a medical malpractice action against Dr. Lin, alleging X-Ann should have had a Caesarian section and that Dr. Lin was negligent in his prenatal treatment of X-Ann and in his delivery of Tierra. X-Ann subsequently dismissed her claim against Dr. Lin.
Dr. Lin brought a motion for summary judgment supported by an expert declaration opining that Dr. Lin met the applicable standard of care. The trial court granted the motion for summary judgment after sustaining Dr. Lin's evidentiary objections to the expert declaration submitted by Tierra in opposition to the motion. On appeal, Tierra contends, among other things, the court's evidentiary ruling was erroneous. As we shall explain, we find the court acted well within its discretion in sustaining Dr. Lin's objections because critical assertions in Tierra's expert's declaration were without factual support or based on speculative analysis. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual summary is based on Dr. Lin's separate statement of undisputed material facts. X-Ann and Eric McGee are Tierra's parents. Dr. Lin has been X-Ann's ob-gyn since at least 1988 and delivered three of X-Ann's children prior to delivering Tierra.[2] All the prior deliveries were normal vaginal deliveries without any problems and with the babies weighing between eight and nine pounds each. In her prior pregnancies, X-Ann's weight gain was 40 pounds in 1988, 23.5 pounds in 1991, and 29 pounds in 1996.
On February 4, 2000, X-Ann began prenatal treatment with Dr. Lin for her pregnancy with Tierra. X-Ann's total weight gain between February 4, 2000, and the time of her last prenatal office visit on July 18, 2000, was approximately 16 pounds (from 210 to 226 pounds). The San Joaquin Community Hospital record indicated a total weight gain of approximately 30 pounds but even that was within the â€
