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Levitin v. Brown4/21/2005
stive of malignancy . . . ." Dr. Hance opines that each defendant, in conformance with the standard of care, should have recognized those suspicious abnormalities in specific mammogram studies they had reviewed pertaining to Mrs. Levitin prior to November 2000. Dr Hance also points out gaps in the moving parties' declarations, noting the failure of Dr. Link to express any opinion regarding the abnormalities in the left upper outer quadrant of the left breast, as well as Dr. Link's failure to express any opinion about the effect of the delayed diagnosis of the left breast tissue tumor from 1995 to 2000.
Defendants were entitled to rely upon the plaintiffs' discovery responses to carry their initial burden. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 592-593; see also Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 76-78 & fn. 2 ["Factually void" discovery responses can be relied upon to shift the burden of proof to the opposing party.] However, plaintiffs were entitled to rely on the additional information provided by their medical expert to create a triable issue of fact, even though plaintiffs did not update their interrogatory response to provide defendants with Dr. Hance's opinion. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1328-1329.)
In Biles, plaintiff alleged that he had been exposed to asbestos fibers while working for a subcontractor assisting in the construction of defendant's oil refinery. Defendant was sued on a premises liability theory, and moved for summary judgment on the basis that there was no dangerous condition it controlled that caused plaintiff's illness. In part, Exxon relied upon plaintiff's deposition testimony that he recalled no contact with anyone employed by the refinery during his work there. In an earlier interrogatory response, plaintiff stated he had no information regarding any person with knowledge of the work at the refinery that exposed him to asbestos fibers. In opposition to the summary judgment motion, however, plaintiff submitted a declaration by a co-employee describing Exxon employees using compressed air hoses to blow asbestos dust throughout the area where plaintiff and the declarant worked. (Biles v. Exxon Mobil Corp., supra 124 Cal.App.4th at pp. 1320-1321.)
Biles ruled that there was no duty to supplement the interrogatory responses. (Biles v. Exxon Mobil Corp., supra 124 Cal.App.4th at p. 1328.) Further, such undisclosed information may be used to oppose a summary judgment motion. A contrary rule "would be inconsistent with case law holding that `factually void' discovery responses can be relied upon to shift the burden of proof to the opposing party. [Citations.] If a party who fails to amend or supplement interrogatory responses can be categorically precluded from offering undisclosed information in opposition to a later filed summary judgment motion, the need for a burden shifting rule would be eliminated. In its place would be a rule that compels the granting of a motion for summary judgment based on factually void discovery responses, because any attempt to fill the void with new evidence would be precluded." (Id. at pp. 1328-1329.)
In assessing the evidence submitted for the summary judgment motion, we must strictly construe the declarations of the moving party and accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence. (Sutherland v. Barclays American/Mortgage Corp., supra, 53 Cal.App.4th at p. 309.) Applying those principles to the declarations for the present motion, we are left with a substantial gap in the evidence needed to support the key foundational premise of the motion:
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