Client Alert: Oncology Expert’s Opinion Based on Plaintiff’s Family History and Personal Experience Properly Admitted in Wrongful Death Action

In Uriell v. Regents of UC (Filed 1/29/2015, Published 2/20/2015, No. D064098) the California Court of Appeal, Fourth Appellate District, held the testimony of an Oncology expert testifying in a wrongful death action was properly admitted where the testimony was premised on the expert’s personal experience and understanding of the patient’s family history.

Decedent, Barbara Kastan, had an extensive family history of breast cancer. In 2007, Ms. Kastan’s husband, Plaintiff Patrick Uriell, found a lump in Kastan’s left breast. Kastan immediately scheduled an appointment with her doctor at the University of California, San Diego (UCSD), who palpated a two centimeter hard lump, ordered a mammogram and ultrasound, and determined there were no significant masses which indicated signs of cancer. Kastan was referred to Dr. Sarah Blair, another physician at UCSD, who determined the mass was “simply cysts,” and told Kastan she did not have cancer. Dr. Blair did not order follow-up testing or an MRI.

By January 2009, Kastan noticed deformities of her left breast and was again referred to Dr. Blair. In May 2009, Dr. Blair diagnosed cancer. Kastan was informed that the cancer could not be cured because it was in such an advanced stage. In December 2010, Kastan died as a result of breast cancer.

Uriell, and the children of Ms. Kastan filed suit against the Regents of the University of California alleging wrongful death. At trial, Plaintiffs’ expert testified that the failure to biopsy the mass in the left breast, and the failure to order an MRI in 2007 resulted in a delay that led to Ms. Kastan’s death. He opined that if those measures had been taken in August 2007, Ms. Kastan would have been diagnosed with breast cancer at that time, and would have had treatment options which would have resulted in her survival for ten or more years. The Regents objected to this testimony on the ground it lacked foundation but the objection was overruled. Counsel for the Regents did not question Plaintiffs’ expert about the foundation for this testimony. The jury returned a verdict in favor of the Plaintiffs, and the Regents appealed.

On appeal, the Fourth Appellate District affirmed, holding the evidence was properly admitted because the Uriells’ expert testimony was premised on the expert’s review of Ms. Kastan’s family history and his personal experiences in treating women with stage four breast cancer. Based upon those experiences, the expert testified “to a reasonable degree of medical certainty” that Kastan would have survived ten years if she was diagnosed and treated in 2007.

The Court noted that counsel for the Regents had failed to follow-up with questions about the basis for this opinion, and therefore the appellate court could not conclude the trial court had abused its discretion in admitting the testimony.

The decision is important for two main reasons: (1) it further confirms that the threshold for admitting expert testimony is generally easily satisfied, and that most trial courts will admit the testimony and allow the trier of fact to weigh the credibility of the testimony, rather than exclude or strike the testimony; and (2) counsel for the party seeking to strike the testimony must sufficiently attack the foundation, or the appellate court will likely determine that the trial court did not abuse its discretion by admitting the testimony.

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March 2, 2015