McCormick-Gordon v. Cedars-Sinai Medical Center RB

HI.
PLAINTIFFS CANNOT REMEDY THEIR FAILURE
OF PROOF BY RESORTING TO THE COMMON
KNOWLEDGE EXCEPTION OR RES IPSA
LOQUITUR.
Plaintiffs contend that they can fill the holes in Dr. Rifkin's
declaration by invoking the common knowledge exception or the doctrine
of res ipsa loquitur. (AOB 9-10.) But while these can occasionally
substitute for the usually-required expert testimony, this case doesn't
present such an occasion.
Indeed, plaintiffs acknowledge that, at best, they can use these
doctrines only to establish a breach ofthe standard of care, not causation.
(AOB 9 & 10.) This concession is unavoidable, since at most the doctrines
could establish Cedars-Sinai's responsibility for the catheter fragment's
presence in Gordon's body; only expert testimony could possibly link the
fragment's presence to any medical condition, much less to Gordon's death.
And, as shown in the preceding section, plaintiffs did not present sufficient
expert causation testimony because Dr. Rifkin's opinions lacked any
reasonable basis. Thus, even if plaintiffs can use res ipsa loquitur or
common knowledge to establish a breach of the standard of care, they still
have not carried their burden of showing all the negligence elements, and
the judgment should be affirmed.
Plaintiffs' use of res ipsa/common knowledge to establish a breach
of the standard of care requires a gross oversimplification. Their argument
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