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Levitin v. Brown4/21/2005
or were the cause of any harm to Mrs. Levitin. Defendants later withdrew the standard of care aspect of the motion, but proceeded with the challenge on the causation element, arguing plaintiffs' claims amounted to an attempt to recover under a theory of "lost chance" causation not permitted under California law.
In support of the motion for summary judgment, defendants presented the declaration of an expert in internal medicine and oncology (Dr. John Link), who opined that no act or omission by defendants was a substantial factor in causing any injury to Mrs. Levitin. In Dr. Link's opinion, Mrs. Levitin would have experienced no change in treatment or outcome even if the secondary metastatic axillary lymph node tumor had been diagnosed in 1994 and her left breast tumor had been diagnosed in 2000: "The patient's pathology reports demonstrate that the left axillary lymph node tumor was a metastatic lesion. As a result of having one lymph node positive for metastasis, Mrs. Levitin needed (and received) breast-conserving surgery, radiation therapy, chemotherapy and Tamoxifen (hormone therapy). This would have been the same treatment she would have received, had the left axillary lymph node metastasis been diagnosed in 1994. [ ] . . . As a result of having the left breast tumor, Mrs. Levitin needed (and received) breast-conserving surgery in a different part of the breast from where the axillary lymph node was removed. This would have been the same treatment she would have received, had the left breast tumor been diagnosed in 2000."
In opposition, plaintiffs presented their own expert testimony on the causation issue. According to their radiologist expert (Dr. Darwood Hance), the delay in diagnosis of the malignancy afforded time for "many doublings of tumor diameter and volume, and resulted in a spread of the cancer outside the lymph node where surgery could no longer hope to be definitive . . . . More likely than not she will die from the irreversible cancer which is in her body from its metastasis outside the axillary lymph node and the only question is when." He stated that the left axillary lymph node presented for the first time in the 1994 mammogram (as compared with eight prior mammograms from Jan. 22, 1986 through Nov. 10, 1992), and that "spiculation[ ] and architectural distortion" in the upper outer quadrant of Mrs. Levitin's left breast tissue provided direct signs of malignancy as early as the 1995 mammogram.
According to plaintiffs' expert pathologist (Dr. Michael Lagios), if defendants had timely diagnosed and treated Mrs. Levitin's tumors in 1995, the primary tumor in the left breast tissue would have been significantly smaller "3.78 diameter doublings earlier . . . [with] an extremely favorable prognosis notwithstanding the nodal involvement, with an expectation in excess of 90 percent at 10 years particularly for low grade invasive carcinoma as in this case." Based on his calculations, all of the metastases to the axillary lymph nodes would have been "micrometastases" in April 1995, but that one or possibly two of the lymph nodes would have been large enough to have been detected if surgical intervention had occurred at that time. He opined that the delay in treatment from 1995 until 2001 reduced the probability Mrs. Levitin would remain disease-free 10 years after her treatment to less than 50 percent.
Defendants submitted written objections to the testimony of plaintiffs' experts, arguing that the opinions lacked a sufficient foundation. Thereafter, the trial court issued its ruling, granting the motion and sustaining the objections to the testimony of plaintiffs' experts. On the causation issue, the court concluded that uncontroverted evidence establishe
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