Temple, Georgette v. Rothlisberger, Brian

As to the Declaration of Georgette Temple, the court overrules General Objection, and overrules Specific Objection Nos. 1, 3, 5, and 7. The court also overrules in part and

sustains in part Specific Objections Nos. 2, 4, 6, and 8 through 9. Specifically, the court sustains in part: • Specific Objection No. 2 only to the extent Plaintiff purports to opine that the falls were caused by retinal toxicity or deteriorating eyesight, as Plaintiff is not a qualified expert to render medical causation opinions; • Specific Objection No. 4 only as to hearsay dependent statements concerning the fiancé’s daughter organizing Plaintiff’s clothing by color insofar as it is offered for the truth of the matter asserted, but the court notes it may consider the statement for the limited purpose of explaining Plaintiff’s functional limitations and perception of worsening color vision; • Specific Objection No. 6 only to the extent Plaintiff attempts to attribute those symptoms to a specific medical diagnosis or offer expert medical causation opinions, and the court notes that the testimony that Dr.

Rothlisberger allegedly did not personally examine Plaintiff in September 2021 goes to weight rather than admissibility; • Special Objection No. 8 only to the extent that Plaintiff attempts to imply medical negligence solely from the absence of a Plaquenil toxicity diagnosis or to offer expert opinions regarding the adequacy of treatment; and • Special Objection No. 9 only as to speculate assertions concerning what Defendants “knew” regarding Plaquenil toxicity or any implied medical conclusions beyond Plaintiff’s knowledge.

As to the Declaration of Mark Ravis, the court overrules the General Objections, and notes that Plaintiff subsequently filed an authenticated excerpt of Dr. Rothlisberger’s deposition testimony as soon as the transcript was made available. The court overrules in part and sustains in part Specific Objection No.

1. The court sustains the objection to Specific Objection No. 1 only to the extent the declaration itself purports to offer medical or expert conclusions regarding the significance of the OCT testing, cataracts, or retinal evaluation methodology.

Legal background

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 judgment as a matter of law.” (Cal. Code Civ. P. (“CCP”) § 437c(c).) The court must “consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence.” (Ibid.) Critically, “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Ibid.)

“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.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607, quoting Munro v. Regents University

of California (1989) 215 Cal.App.3d 977, 9840-985; see also, Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) Both the standard of care and causation “must normally be established by expert testimony in a medical malpractice case.” (Hulbert v. Cross (2021) 65 Cal.App.5th 405, 416, quoting Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) The standard of care is a matter “peculiarly within the knowledge of experts” and “can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s knowledge.” (Hanson, supra, 76 Cal.App.4th at p. 607 (quoting Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001); San Antonio Regional Hospital v. Superior Court (2024) 102 Cal.App.5th 346, 350.)

When experts dispute causation or standard of care, summary judgment must be denied. (Hanson, supra, 76 Cal.App.4th 601 (holding that patient’s expert’s declaration submitted was adequate to create triable fact issues on breach of duty and causation, precluding summary judgment for surgeons); Tortorella v. Castro (2006) 140 Cal.App.4th 1 (emphasizing that expert declarations must be construed liberally in favor of the party opposing summary judgment.))

The defendant moving for summary judgment bears the initial burden of producing expert evidence that conduct met the standard of care and did not cause plaintiff’s injuries. (Zaragoza v. Adam (2025) 109 Cal.App.5th 113,) Once the defendant meets this burden, it shifts to the plaintiff to present “conflicting expert evidence.” (Powell, supra, 151 Cal.App.4th at 123.) If the plaintiff produces a competing expert declaration opinion that the defendant breached the standard of care or that the breach caused injury, a triable issue of material fact exists. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1149.)

Discussion

Here, Plaintiff alleges Moving Defendant negligently failed to timely recognize Plaquenil retinal toxicity and discontinue Plaintiff’s long term Plaquenil therapy, resulting in progressive and irreversible vision loss.

Moving Defendant presented evidence through expert ophthalmologist Dr. David Mark that Dr. Rothlisberger’s treatment complied with the applicable standard of care at all times. (Mark Dec. at ¶¶ 7, 11-12.) Dr. Mark opines Plaintiff’s examinations, OCT imaging, visual field testing, follow-up recommendations, and referrals were appropriate and that no act or omission by the Moving Defendant caused Plaintiff’s injuries. (Id. at ¶¶ A-E, 12.) In particular, Dr. Mark states that Plaintiff’s June 2013, March 2019, July 2019, January 2021, and April 2021 examinations did not reveal Plaquenil maculopathy and that the Moving Defendant appropriately monitored Plaintiff’s condition through OCT imaging, visual field testing, and follow up screening. (Id. ¶¶ A-E.)

The court finds that while Dr. Mark’s Declaration alone appears to satisfy the Moving Defendant’s initial burden under CCP section 437c, Plaintiff has also met her burden by presenting conflicting expert evidence.

Plaintiff submits the declaration of ophthalmologist Dr. Todd Lefkowitz, who opines that Plaintiff exhibited progressive symptoms highly suggestive of Plaquenil retinal toxicity years before the medication was discontinued in 2023. (Lefkowitz Dec. ¶¶ 6, 8-16.) Plaintiff’s own declaration similarly describes worsening blurry vision, difficult reading signs and television text, impaired color perception, severe light sensitivity, inability to drive, falls, and worsening depth perception. (Temple Dec. ¶¶ 3-14.)

Dr. Lefkowitz further opines that, in a patient with significant cataracts, reliance solely upon OCT imaging and structural retinal testing was inadequate because cataracts may obscure or interfere with retinal visualization. (Id. at ¶¶ 6, 10, 14.) According to Dr. Lefkowitz, the standard of care required additional functional retinal testing, including Multifocal Electroretinography testing, and discontinuation of Plaquenil despite the absence of visible structural retinal changes. (Id. at ¶¶ 6, 10, 14-16.)

Some of Dr. Lefkowitz’s opinions appear to be supported by the contemporaneous medical records which document Plaintiff’s repeated complaints of blurred vision, worsening visual symptoms, long-term Plaquenil use, decreased color vision testing, and cataracts. (Id. at ¶¶ 8-13.) The January 2021 records specifically note reduced color testing and “blurring” attributable to cataracts. (Lefkowitz Dec. ¶ 9, see also, Rothlisberger Evidence of Exhibits at Ex. B at p. 92.) The April 2021 records further document worsening blurry vision. (Lefkowitz Dec. ¶ 10, Rothlisberger Evidence of Exhibits at Ex. B at p. 101.) Plaintiff’s declaration also describes progressively worsening visual symptoms throughout this period. (Temple Dec. ¶¶ 3-14.)

Although the Moving Defendant disputes the significance of these findings and offers competing expert testimony, Plaintiff’s expert opinions are sufficient to create triable issues of material fact.

It is noted that the Moving Defendant argues that Plaintiff improperly relies on unpled theories concerning medical assistants and inadequate history taking. The court agrees Plaintiff cannot expand the scope of the pleadings through opposition papers. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 649.) Accordingly, the court does not treat generalized office staffing criticisms or the alleged charting deficiencies as independent negligence theories.

Nevertheless, even excluding those collateral theories, Plaintiff still presents substantial expert evidence directly supporting the pleaded claim that Dr. Rothlisberger negligently failed to discontinue Plaquenil and failed to adequately evaluate symptoms suggestive of retinal toxicity. (Lefkowitz Dec. ¶¶ 6, 8-16.)

To the extent the Moving Defendant argues Plaintiff improperly conflates treatment rendered by Drs. Dang and Jacobs with treatment rendered by Dr. Rothlisberger, the court agrees the evidence must be evaluated specifically as to Dr. Rothlisberger. The record, however, reflects Dr. Rothlisberger personally examined Plaintiff on multiple occasions during the relevant period, documented Plaintiff’s visual complaints, monitored her long-term Plaquenil use, and participated in ophthalmologic decision-

making central to Plaintiff’s theory of liability. (Mark Dec. ¶¶ B-E; Lefkowitz Dec. ¶¶ 8- 16.)

Thus, the court cannot conclude as a matter of law at this time that Plaintiff’s evidence fails to create a triable issue regarding the Moving Defendant’s own conduct. Here, it appears that the parties’ experts fundamentally disagree regarding whether Plaintiff’s escalating symptoms required discontinuation of Plaquenil before structural retinal changes became visible through OCT imaging. (Mark Dec. ¶¶ B-E, 12; Lefkowitz Dec. ¶¶ 6, 8-16.) The experts further disagree regarding whether Dr. Rothlisberger’s diagnostic approach was adequate in the presence of cataracts and whether earlier intervention would have altered Plaintiff’s outcome. (Mark Dec. 12; Lefkowitz Dec. ¶¶ 10, 14-16.)

These are factual disputes for resolution at trial rather than by summary judgment. The court is not permitted at this stage to weigh the credibility of competing experts or determine which medical interpretation is more persuasive. (Hansen, supra, 76 Cal.App.4th at 607.) Accordingly, there are triable issues regarding breach of the standard of care and causation that preclude summary judgment at this time.

Therefore, the Motion is denied and the alternative request for summary adjudication is likewise denied. The court finds that triable issues of material fact exist regarding whether the moving Defendant’s monitoring and evaluation of Plaintiff’s long term Plaquenil use complied with the applicable standard of care; whether the Moving Defendant’s reasonably relied upon OCT and structural retinal testing despite Plaintiff’s cataracts and progressive symptoms; whether Plaintiff’s symptoms required discontinuation of Plaquenil before 2023; and whether earlier discontinuation or additional retinal testing would have prevented or reduced Plaintiff’s alleged vision loss.

10. S-CV-0054299 Gomez, Hector Ortega v. Entrussed

If oral argument is requested, it will be heard in Department 42 by the Honorable Trisha J. Hirashima.

Plaintiff is advised the notice of motion must include notice of the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Motion for Preliminary Approval

Plaintiff seeks preliminary approval of the parties’ class action and PAGA settlement. No opposition has been filed.

As part of the court’s review of whether preliminary approval of a settlement is appropriate, the court reviews the release of claims to ensure it is not overbroad and is tied to the operative complaint and the Labor Code section 2699.3 notice to the LWDA. Here, plaintiff did not provide a copy of the Section 2699.3 notice to the LWDA so the court has been unable to review it.

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