Owens v. The Queen's Medical Center

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-NOV-2024
07:56 AM
Dkt. 98 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

LADONNA MICHELLE OWENS, PERSONAL REPRESENTATIVE
OF THE ESTATE OF OLIVER C. OWENS, Plaintiff-Appellant,
v.
THE QUEEN'S MEDICAL CENTER, LEON K. LIEM, M.D.;
LEON K. LIEM, M.D., LLC; DANIEL J. DONOVAN, M.D.;
DANIEL J. DONOVAN, M.D., LLC, Defendants-Appellees,
and
JOHN OR JANE DOES 1-20; DOE PARTNERSHIPS,
CORPORATIONS OR OTHER ENTITIES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC161000570)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)

In this medical malpractice action, Plaintiff-

Appellant Oliver C. Owens (Owens)1 appeals from the "Order

Granting 'Defendant[-Appellee] The Queen's Medical Center

1 Owens passed away during the pendency of this appeal. This court
has approved the substitution of LaDonna Michelle Owens, as Personal
Representative of the Estate of Oliver C. Owens, pursuant to Hawaiʻi Rules of
Appellate Procedure Rule 43(a).
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[(QMC)]'s Motion for Partial Summary Judgment as to Plaintiff's

Claim for Negligence Regarding His Spinal Condition' Filed on

8/26/19" (MSJ Order), filed on March 19, 2020, and the "[Hawaiʻi

Rules of Civil Procedure] HRCP Rule 54(b) Final Judgment"

(Judgment), filed on June 25, 2021, by the Circuit Court of the

First Circuit (circuit court).2 The MSJ Order and Judgment were

entered in favor of QMC.3

Owens raises a single point of error on appeal,

contending that "the trial court reversibly erred when it

granted summary judgment in favor of [QMC] and entered its [MSJ

Order], in which the court rejected [Owens'] expert opinions

regarding causation, and found that [QMC] was entitled to

judgment as a matter of law."4

Upon careful review of the record and relevant legal

authorities, and having given due consideration to the arguments

advanced and the issues raised by the parties, we resolve Owens'

contentions as follows:

2 The Honorable Gary W.B. Chang presided over the entry of all
relevant substantive orders, including the MSJ Order, and the Judgment.

3 Although Owens' complaint also named Leon K. Liem, M.D., Leon K.
Liem, M.D., LLC, Daniel J. Donovan, M.D., and Daniel J. Donovan, M.D., LLC,
as defendants, they were dismissed as parties prior to entry of the MSJ Order
and Judgment, and are nominal appellees to this appeal.

4 Owens' complaint set forth two counts: Count I, alleging
negligence; and Count II, alleging no informed consent. QMC moved for
summary judgment as to both Counts I and II. Owens filed a statement of no
opposition with regard to Count II. The circuit court issued orders granting
summary judgment in favor of QMC on Count II in February 2020, and on Count I
in March 2020. Owens does not appeal the summary judgment as to Count II.

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(1) Owens contends that the circuit court erred by

ruling that Dr. Weinstein's proffered testimony was inadmissible

pursuant to Hawaii Rules of Evidence (HRE) Rules 702 and 703.5

The admission of expert testimony, pursuant to HRE Rules 702 and

703, "is premised on an assumption that the expert's opinion

will have a reliable basis in the knowledge and experience of

his [or her] discipline." State v. Vliet, 95 Hawaiʻi 94, 106,

19 P.3d 42, 54 (2001) (citation omitted). "[A] trial court may

disallow expert testimony if it concludes that the proffer of

specialized knowledge is based on a mode of analysis that lacks

trustworthiness." State v. Maelega, 80 Hawaiʻi 172, 182, 907

P.2d 758, 768 (1995) (cleaned up).

5 HRE Rule 702 provides,

Rule 702 Testimony by experts. If scientific,
technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise. In
determining the issue of assistance to the trier of fact,
the court may consider the trustworthiness and validity of
the scientific technique or mode of analysis employed by
the proffered expert.

HRE Rule 703 provides,

Rule 703 Bases of opinion testimony by experts. The
facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. If of a
type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject,
the facts or data need not be admissible in evidence. The
court may, however, disallow testimony in the form of an
opinion or inference if the underlying facts or data
indicate lack of trustworthiness.

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The "touchstones of admissibility" under HRE Rule 702

are relevance and reliability. Vliet, 95 Hawaiʻi at 106, 19 P.3d

at 54 (citation omitted). As this court has previously

explained,

Whether a witness qualifies as an expert is a matter
addressed to the sound discretion of the trial court, and
such determination will not be overturned unless there is a
clear abuse of discretion. In applying HRE Rule 702, the
trial court must determine whether the expert's testimony
is (1) relevant, and (2) reliable. The trial court's
relevancy decision under HRE [Rule] 702 is reviewed de
novo. The trial court's determination as to reliability is
reviewed under the abuse of discretion standard.

Barbee v. Queen's Med. Ctr., 119 Hawaiʻi 136, 152, 194 P.3d 1098,

1114 (App. 2008) (cleaned up). "[I]n a medical malpractice

case, a plaintiff must establish proximate or contributory

causation through the introduction of expert medical testimony"

and such testimony "must be based on a 'reasonable medical

probability.'" Id. at 159, 194 P.3d at 1121.

We conclude that the circuit court abused its

discretion in determining that Dr. Weinstein's proffered

testimony on causation was not reliable, and in excluding the

testimony on that basis.

The circuit court found that Owens proffered Dr.

Weinstein's testimony to establish "legal causation" by opining:

(1) "that [QMC] failed to meet its duty to insure [sic] that its

nursing staff provide proper discharge instructions to a

surgical patient"; (2) "[a]s a result," "[Owens] lacked an

understanding regarding when he should return to the hospital or

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otherwise contact Dr. Liem if problems arose after surgery"; and

(3) "[a]n earlier call to Dr. Liem by [Owens] would likely have

prevented the eventual occurrence and persistence of paralysis

due to cervical spinal cord compression." With regard to

causation, Dr. Weinstein's testimony was therefore introduced to

establish that the provision of improper discharge instructions

caused Owens' paralysis.

We conclude that the circuit court erred in finding

"that Dr. Weinstein's opinion on the discharge instructions

causing harm to [Owens] is not admissible because it is [a]

self-serving attempt to modify his prior deposition testimony,

lacks foundation, and constitutes pure conjecture or

speculation."

The record reflects that Owens provided an adequate

foundation for Dr. Weinstein's testimony on causation, by

establishing that Dr. Weinstein's education, training, and

experience as a licensed and board-certified neurologist whose

experience in performing the same type of surgical procedure

performed on Owens by Dr. Liem, as well as his familiarity with

the type of discharge instructions that should be provided to

patients after that specific procedure, qualified him as an

expert regarding the causal nexus between inadequate discharge

instructions and Owens' paralysis. Dr. Weinstein represented in

his deposition testimony that, inter alia, had proper discharge

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instructions been provided to Owens, Owens would have likely

obtained a "better neurological result,"

Q. What's the basis for your conclusion that had Dr.
Donovan been notified earlier, he would have done anything
differently than what he did or when he did it?

A. The basis is the course of events after he was
notified, which is that he first tried adjusting pain
medication, he then admitted Dr. Donovan (sic) for a course
of intravenous steroid therapy, and he then took him back
for another operation as an emergency.

I think that if he had been –- if he had understood
more about Mr. Donovan (sic), his patient –- Mr. Donovan
(sic) as his patient, his surgical risk factors, the extent
of the surgery that had been performed, each of those
events would have been moved up by a day.

. . . .

Q. So how can you say that he would have done it
earlier than that day?

A. My opinion is based on my supposition that if he
had seen the patient two days earlier, he would have
started the steroids and, after 24 hours with the amount of
deterioration that had occurred up to the 22nd, I guess, he
would have taken him to surgery earlier with a better
neurological result.

Owens later clarified, through the submission of Dr.

Weinstein's own deposition testimony, that Dr. Weinstein's use

of "speculative" language – through words such as "supposition"

and "guess" – reflected his opinion of causation within

reasonable medical probability,

Well, I understand "speculative" to be an [sic]
hypothesis. In other words, almost every medical principle
that we use is best approximation. So there's always some
uncertainty. And that's my interpretation of the term
"speculative".

. . . .

. . . I was interpreting that lack of speculation as
a hundred percent. Anything less than that, say it was an
80- or 90-percent chance, as having an element of being
speculative.

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Owens' clarification of Dr. Weinstein's inability to opine with

one hundred percent certainty that inadequate discharge

instructions caused Owens' paralysis cannot fairly be construed

as a "self-serving attempt to modify [Dr. Weinstein's] prior

deposition testimony." This clarification, moreover,

establishes why Dr. Weinstein's testimony as to causation does

not constitute "pure conjecture or speculation," but, rather,

explains why his opinion is consistent with the medical standard

of "best approximation."

The record does not support the circuit court's

characterization of Dr. Weinstein as "an interloper who stands

behind academic credentials with no real expertise on the

subject matter." Nor does it support that "Dr. Weinstein's

opinion as to causation is untrustworthy and does not appear to

be based upon any scientific technique or analysis," and that

Dr. Weinstein is therefore "merely a mouthpiece in support of

the plaintiff by offering an 'expert' opinion as a matter of

convenience and opportunity." The circuit court abused its

discretion in making these unsupported findings, and in

excluding Dr. Weinstein's expert testimony on the issue of

causation.

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(2) Owens contends that the circuit court erred in

granting summary judgment on Count I because a genuine question

of material fact exists as to causation. We agree.

"On appeal, the grant or denial of summary judgment is

reviewed de novo." Ralston v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d

1276, 1285 (2013) (citations omitted). The court applies the

following standard,

[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.

Id. at 55-56, 292 P.3d at 1285-86.

Owens' proof of the causation element of his

negligence claim was contingent on medical expert testimony.

Bernard v. Char, 79 Hawaiʻi 371, 377, 903 P.2d 676, 682 (App.

1995), aff'd, 79 Hawaiʻi 362, 903 P.2d 667 (1995) ("unlike the

ordinary negligence case, it is the general rule that a medical

malpractice case based on negligent treatment cannot be

established without expert medical testimony to support it").

As explained supra, the circuit court erred in excluding Dr.

Weinstein's proffered testimony on causation. Dr. Weinstein's

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expert testimony raises a genuine question of material fact as

to causation.

For the foregoing reasons, we vacate the MSJ Order,

and Judgment, and remand for further proceedings consistent with

this summary disposition order.

DATED: Honolulu, Hawaiʻi, November 6, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Richard Naiwieha Wurdeman,
for Plaintiff-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Saori Takahashi,
for Defendant-Appellee. /s/ Kimberly T. Guidry
Associate Judge

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