Johnson v. Superior Court

Respondent, Superior Court, granted the summary judgment motion of defendants and real parties in interest, Seth A. Rosenthal and Mark A. Leibenhaut in the medical malpractice action filed by plaintiff and petitioner, Donald R. Johnson. The trial court granted the summary judgment motion because it found plaintiff’s expert declaration in opposition to the motion was “patently inadequate” and it refused to consider a late-filed amended declaration.

Plaintiff filed this action for a writ of mandate. We granted an alternative writ and stayed the proceedings. We shall conclude that defendants’ expert declaration was insufficient to establish facts from which a reasonable trier of fact would find the defendants acted within the standard of care. Therefore, even if plaintiff’s expert declaration was inadmissible, defendants were not entitled to summary judgment.

We will issue a peremptory writ.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff’s complaint alleged the following pertinent facts. Plaintiff was diagnosed with prostate cancer, and in January 1999 was treated for that condition by the implantation of radioactive material in his prostate gland. His doctors, including…