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   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION ONE

SURAJ PINTO,                                    No. 73650-7-1


                    Appellant,



GREGORY VAUGHN and JANE DOE
VAUGHN; PAOLA LEONE and JANE
DOE LEONE; LEONE & VAUGHN,
DDS, P.S., d/b/a LEONE & VAUGHN                 UNPUBLISHED OPINION
ORTHODONTICS; L. DOUGLAS
TRIMBLE and JANE DOE TRIMBLE,                   FILED: January 23, 2017

                    Respondents.


      Verellen, C.J. — Suraj Pinto received orthodontic treatment from Dr. Gregory

Vaughn and Dr. Paola Leone. They referred Pinto to Dr. L. Douglas Trimble, an oral

and maxillofacial surgeon, who performed two procedures on Pinto. The trial court

granted summary judgment dismissing Pinto's claims for malpractice and lack of

informed consent against Drs. Vaughn, Leone, and Trimble.

      Given the nature of the procedures and alleged injury, Pinto needed to present

qualified expert testimony regarding the standard of care and the material risks

requiring informed consent. As to Dr. Trimble, one of Pinto's experts offered no

opinion on the standard of care or material risks requiring consent. The other did not

adequately establish his qualifications. As to Drs. Vaughn and Leone, the trial court
No. 73650-7-1/2



struck Pinto's experts for discovery violations. Pinto's challenges to the order striking

the experts are not compelling.

       Therefore, we affirm.

                                          FACTS

       Suraj Pinto sought an orthodontic consultation with Dr. Gregory Vaughn on

September 9, 2008. Drs. Vaughn and Leone are husband and wife. Dr. Vaughn

examined Pinto and presented treatment options to him. Pinto started orthodontic

treatment and agreed to "do five-teeth wilkodontics" on his "upper teeth only."1

According to Pinto, the treatment involved poking holes in his gums to move his

upper front teeth forward and Dr. Vaughn assured him that it was an easy and

noninvasive way to move his teeth.

       Before his final wilkodontics procedure, Pinto remembered receiving a

voicemail from Drs. Vaughn and Leone's office asking him to either "do jaw surgery

or full mouth wilkodontics."2 When Pinto spoke to Dr. Vaughn at his next

appointment, Dr. Vaughn told Pinto about the orthognathic procedure. Pinto said Dr.

Vaughn described orthognathic surgery as a "mid-level outpatient procedure, similar

to wilkodontics but with far better results. [Dr. Vaughn] also stated that this

procedure had the same recovery time, same out of pocket expenses and no risks or

side effects involved."3 Based on Dr. Vaughn's description of the procedure, Pinto




       1 Clerk's Papers (CP) at 256-57.
       2 CP at 257.
       3 CP at 257.
No. 73650-7-1/3



followed the treatment plan and "[a]t their request, [Pinto] was asked to sign a

financial contract. There was no change in informed consent however."4

       Dr. Leone referred Pinto to Dr. L. Douglas Trimble for extractions and an

orthognathic surgery evaluation. Dr. Trimble is an oral and maxillofacial surgeon.

       Dr. Trimble extracted Pinto's bicuspids on September 3, 2009, and then

performed maxillary and mandibular orthognathic surgery on August 24, 2011. Pinto

started experiencing symptoms including tingling of his hands and feet, chest pains,

high pulse rates, shortness of breath, and restless nights of sleep after the first

procedure. According to Pinto, he had never been diagnosed or had issues with

sleep apnea or any other disorder until he "began pre-surgery dental work with Dr.

Leone, Dr. Vaughn, and Dr. Trimble."5 Pinto also said that he "was verbally told that

any nasal congestion or nerve damage were all temporary and not permanent."6

       After the orthognathic surgery, Pinto had orthodontic appointments on

October 12, 2011 and November 4, 2011. Pinto told Dr. Vaughn that he was

unhappy with the outcome of the orthognathic surgery and did not attend his next

scheduled appointment.

       Pinto filed a lawsuit on August 21, 2014, alleging Drs. Trimble, Vaughn, and

Leone failed to meet the required standard of care and did not obtain his informed

consent. The case schedule listed trial for October 5, 2015 with an August 17, 2015




       4 CP at 258.

       5 CP at 258.
       6 CP at 259.
No. 73650-7-1/4



discovery cutoff date. The parties later agreed to extend the discovery cutoff to
August 31, 2015.

                       Dr. Trimble's Motion for Summary Judgment

        Dr. Trimble filed a motion for summary judgment citing Pinto's lack of expert

testimony to support his claims. In response, Pinto produced declarations from Dr.

James Rockwell and Dr. Jay Grossman. In the alternative, Pinto asked for a 60-day

extension to present additional expert testimony.

        Dr. Rockwell, an ear, nose, and throat doctor, made no mention of the

standard of care or risks requiring informed consent.

        Dr. Grossman, "a licensed Dentist in the State[s] of California and Nevada,"7

incorporated by reference a report he had prepared in 2014. The report included

limited opinions regarding Pinto's treatment, standard of care, and informed consent.

        The trial court granted Dr. Trimble's motion for summary judgment in June

2015.


               Drs. Vaughn and Leone's Motion for Summary Judgment

        Two months later, Drs. Vaughn and Leone moved for summary judgment.

Drs. Vaughn and Leone moved to strike Pinto's experts as a penalty for repeated

discovery violations. The trial court granted the motion.8 The court found, to the

extent Pinto did provide any responses to Drs. Vaughn and Leone's discovery



        7 CP at 274.
      8 As part of its findings and conclusions, the trial court submitted a detailed
analysis addressing the standards in Jones v. City of Seattle, 179 Wn.2d 322, 314
P.3d 380 (2013), as corrected (Feb. 5, 2014), and Burnet v. Spokane Ambulance,
131 Wn.2d 484, 933 P.2d 1036 (1997). See CP at 922.
No. 73650-7-1/5



requests, the responses were untimely and inadequate.

       In the alternative, the court rejected the substance of expert opinions offered

by Pinto. Dr. Panomitros's report did not include any references to his training or

experience in orthodontics. The court concluded Dr. Panomitros's declaration and

report were insufficient:

       The declaration does not identify any education from Dr. Panomitros
       related to orthodontia. It does not refer to any medical training related
       to orthodontia. It does not refer to any supervisory experience related
       to orthodontia—anything that would demonstrate his familiarity, his
       experience, his exposure to the standard of care for this specialty. And
       there are differences between general dentistry and orthodontia.^1

       The court also concluded Dr. Panomitros's declaration contained conclusory

opinions; did not contain "any recitation of the salient facts, or documents" to support

his opinions, failed to articulate the standard of care for orthodontists, and failed to

articulate how "each defendant individually violated the standard of care and/or failed

to obtain informed consent."10

       The court noted that the opinions of Drs. Grossman and Rockwell were never

identified to be used against Drs. Vaughn and Leone and granted summary

judgment.

       The trial court denied Pinto's motion for reconsideration. Although Pinto

submitted a supplemental declaration from Dr. Panomitros, the trial court found that

the new declaration did not reference any experience in treating the conditions at

issue in this case. Further, Pinto did not offer an explanation as to why the



       9 Report of Proceedings (RP) (Sept. 17, 2015) at 54.
       10 CP at 924.
No. 73650-7-1/6



supplemental information could not have been provided sooner.

       Pinto appeals.

                                       ANALYSIS

       We review a summary judgment order de novo, engaging in the same inquiry

as the trial court.11 Summary judgment is appropriate when no genuine issue of

material fact exists and the moving party is entitled to judgment as a matter of law.12

"'Summary judgment in favor of the defendant is proper ifthe plaintiff fails to make a

prima facie case concerning an essential element of his or her claim.'"13

       Generally, expert testimony is required to establish the standard of care and

proximate cause in dental or medical negligence actions.14 The standard of care

must be established by the testimony of experts who practice or have expertise in the

relevant specialty.15 An exception exists when the standard of care is self-evident.16

"The qualifications of an expert are to be judged by the trial court, and its




       11 Lallas v. Skagit County. 167 Wn.2d 861, 864, 225 P.3d 910 (2009).
       12 CR 56(c); Bohn v. Codv. 119 Wn.2d 357, 362, 832 P.2d 71 (1992).
       13 Rounds v. Nellcor Puritan Bennett. Inc.. 147 Wn. App. 155, 162, 194 P.3d
274 (2008) (quoting Sevbold v. Neu. 105 Wn. App. 666, 676, 19 P.3d 1068 (2001)).
       14 Harris v. Groth. 99 Wn.2d 438, 449, 663 P.2d 113 (1983).
       15 McKee v. American Home Products. Corp.. 113 Wn.2d 701, 706-07, 782
P.2d 1045 (1989): Young v. Key Pharmaceuticals. Inc.. 112 Wn.2d 216, 770 P.2d
182(1989)).
       16 Miller v. Jacobv. 145 Wn.2d 65, 74, 33 P.3d 68 (2001) (a foreign substance
was unintentionally left in a surgical patient.); Young, 112 Wn.2d at 228 ("Where the
determination of negligence does not require technical medical expertise, such as the
negligence of amputating the wrong limb or poking a patient in the eye while stitching
a wound on the face, the cases also do not require testimony by a physician.").
No. 73650-7-1/7



determination will not be set aside in the absence of a showing of abuse of

discretion.'"17

       A doctor must inform the patient of the material facts, including the attendant

risks, for a given treatment before obtaining the patient's consent to treatment.18

A fact is material "if a reasonably prudent person in the position of the patient or his

or her representative would attach significance to it deciding whether or not to submit

to the proposed treatment."19 Such material facts must be established by expert

testimony.20

       Generally, proximate cause is a question for the jury; however, it is a question

of law for the court if the facts are undisputed and the inferences therefrom are plain

and incapable of reasonable doubt.21 "'[M]edical testimony must demonstrate that

the alleged negligence "more likely than not" caused the later harmful condition

leading to the injury; that the defendant's actions "might have," "could have," or

"possibly did" cause the subsequent condition is insufficient.'"22




        17 McKee. 113 Wn.2d at 706 (quoting Bernal v. American Honda Motor Co.. 87
Wn.2d 406, 413, 533 P.2d 107 (1976)).
        18 RCW 7.70.050; Adams v. Richland Clinic. Inc.. P.S., 37 Wn. App. 650, 656,
681 P.2d 1305 (1984); Smith v. Shannon, 100 Wn.2d 26, 29, 666 P.2d 351 (1983).
        19 RCW 7.70.050(2).
        20 RCW 7.70.050(3).
        21 Shellenbarger v. Brigman. 101 Wn. App. 339, 348, 3 P.3d 211 (2000).
        2214 (quoting Attwood v. Albertson's Food Ctrs.. Inc., 92 Wn. App. 326, 331,
966P.2d351 (1998)).
No. 73650-7-1/8



                                        Dr. Trimble


       As to Dr. Trimble, Pinto relies on the declarations of Drs. Grossman and

Rockwell, but their declarations do not reveal any genuine issue of material fact.

       Dr. Rockwell, the ear, nose and throat doctor, does not even mention the

standard of care for or material risks presented by oral surgery.

       Pinto concedes "Dr. Grossman is not a maxillofacial surgeon."23 He argues

Dr. Grossman, a licensed dentist, is qualified because the relevant field of expertise

is not always determined by the specific practice specialty but rather by the familiarity

with the treatment or disease.


       In Davies v. Holy Family Hospital, the plaintiffs relied on a radiologist to

address the standard of care for several different health care providers.24 But the

radiologist failed to provide any basis for his familiarity with, or expertise in the

specialties at issue.25 Similar to the radiologist in Davies, Dr. Grossman failed to

identify education, medical training, or supervisory experience that demonstrated his

familiarity with the standard of care for an oral surgeon.

       Additionally, the few references by Dr. Grossman to the standard of care were

vague and conclusory.26 Pinto contends Dr. Grossman's reference to an



       23 Appellant's Br. at 18.
       24 -i44 Wn. App. 483, 489-95, 183 P.3d 283 (2008).
       25]g\ at 495.
       26 For example, "[l]t appears that there are valid complaints regarding
breaches of the standard of care." CP at 284; "[T]heir actions [unspecified] failed to
meet the requisite standards of care of orthodontists and surgeons collaborating to
resolve Mr. Pinto's chief complaint which was quite simply adjusting his midline."
CP at 285.




                                              8
No. 73650-7-1/9



"unnecessary surgery and the failure to address Pinto's chief complaint all created

the inference that there was a breach in the standard of care."27 But he offers no

authority supporting such a generous inference.

       Alternatively, Pinto suggests Dr. Trimble waived his right to challenge the

sufficiency of Dr. Grossman's declaration on summary judgment because he did not

move to strike. But Dr. Trimble complied with LCR 56(e) by devoting a portion of his

summary judgment reply brief to argue Dr. Grossman's declaration was inadequate.

Dr. Trimble did not waive his right to object to the proffered expert declarations.

       Pinto also suggests experts were not required, but the standard of care for the

maxillary and mandibular orthognathic surgery performed by Dr. Trimble is not self-

evident. Pinto failed to establish the appropriate standard of care for Dr. Trimble.

       As to informed consent, neither Dr. Rockwell nor Dr. Grossman provided

qualified expert testimony defining "the existence and nature of the risk and the

likelihood of its occurrence."28 Thus, Pinto failed to satisfy materiality requirements.

In the absence of sufficient expert medical testimony regarding the existence and

nature of the risks of the procedure and the likelihood of the risks, the trial court

properly dismissed Pinto's informed consent claim against Dr. Trimble.

                                 Drs. Vaughn and Leone

       Pinto argues the trial court abused its discretion when it struck his proffered

expert declarations as a sanction for discovery violations.29


       27 Appellant's Reply Br. at 16.
       28 Adams, 37 Wn. App. at 657-58.
       29 Appellant's Br. at 25; see King County Fire Prot. Dists. v. Hous. Auth. of
King County. 123 Wn.2d 819, 826, 872 P.2d 516, 519 (1994).
No. 73650-7-1/10



       The trial court concluded the case schedule set out deadlines to facilitate

discovery and trial preparation and "[defendants and their counsel are entitled to rely

on the case schedule and state and local court rules."30 The court opined that "'just

cause for delay' means something that is unusual that prevents the identification of

expert witnesses and their opinions and factual bas[e]s and reason for the same,

despite the exercise by counsel of due diligence."31

       Pinto offers no compelling challenge to the order. First, he argues he

identified Dr. Panomitros as an expert witness in a supplemental disclosure. But as

the trial court pointed out, he provided none of the other expert witness information

required by CR 26. Second, he suggests Drs. Vaughn and Leone could have taken

depositions and failed to propose dates for expert depositions. But there is no

requirement that they do so. Third, he notes that Drs. Vaughn and Leone requested

a continuance, failed to provide dates for expert depositions, and then delayed

seeking a CR 26(i) conference. But Pinto cites no authority that such conduct

excused his repeated discovery violations. Finally, he argues the electronic filing of

the motion to strike was untimely by one minute. But he provides no authority that

the trial court lacked the discretion to accept such an electronic filing as timely.

       Pinto fails to support his narrow challenges to the trial court order striking his

expert witnesses with any compelling authority. He fails to establish any abuse of

discretion or legal error.32


       30 CP at 922.
       31 CP at 922.
       32 The trial court considered the Burnet factors on the record in its analysis.
Pinto does not assign error to the trial court's analysis of those factors.


                                            10
No. 73650-7-1/11



       Alternatively, even disregarding the order striking Pinto's expert witnesses,

summary judgment was warranted.

       The alleged breach of the standard of care and lack of informed consent by

Drs. Vaughn and Leone require qualified expert witness testimony. Pinto did not

offer Dr. Rockwell or Dr. Grossman as experts regarding his claims against Drs.

Vaughn and Leone.

       Dr. Panomitros's first declaration states that he is a "licensed general dentist in

the state of Illinois," but does not mention any experience or training in orthodontia.33

This declaration did not qualify him to testify as to the appropriate standard of care for

Drs. Vaughn or Leone.

       As to his informed consent claims against Drs. Vaughn and Leone, Pinto

argues he presented adequate evidence to warrant a trial. We disagree. He failed to

provide an expert with the expertise to address materiality. We conclude the trial

court properly dismissed Pinto's informed consent claim.

                                   Denial of CR 56(f) Extension

       Pinto argues the trial court abused its discretion when it denied his request for

an extension under CR 56(f) to allow the trial court to "fully evaluate other medical

testimony."34 CR 56(f) allows the court the discretion to grant an extension when

affidavits are unavailable. The trial court may deny a 56(f) request if




       33 CP at 685.
       34 Appellant's Br. at 45.


                                            11
No. 73650-7-1/12



              (1) the requesting party does not offer a good reason for the
       delay in obtaining the desired evidence; (2) the requesting party does
       not state what evidence would be established through the additional
       discovery; or (3) the desired evidence will not raise a genuine issue of
       material fact.[35]

Pinto requested a continuance in his response to summary judgment but failed to

submit an affidavit in support of his contingent request for more time.36 The case had

been filed 10 months earlier. The discovery cutoff had been extended. And Pinto

failed to (i) identify a reason for the delay, (ii) identify any new experts he expected to

retain, and (iii) describe what testimony the experts would provide.

       We conclude the trial court did not abuse its discretion when it denied Pinto's


request for a CR 56(f) continuance.

                               Motion for Reconsideration


       Finally, Pinto argues the trial court abused its discretion when it denied his

motion for reconsideration.37 Pinto failed to set forth any specific reasons why the

trial court's order was contrary to law, or that substantial justice had not been done.38

The new declaration from Dr. Panomitros included more information about his

experience and expertise in orthodontics, but Pinto did not explain why this

information was not available when the first declaration was filed. He does not




      35 Janda v. Brier Realty, 97 Wn. App. 45, 54, 984 P.2d 412 (1999) (quoting
Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989)).
       36 See CR 56(f).
       37 See Wilcox v. Lexington Eve Institute. 130 Wn. App. 234, 240, 122 P.3d 729
(2005).
       38 CR 59(a)(7), (9).



                                            12
No. 73650-7-1/13



present a "newly discovered evidence" rationale.39 Pinto did not cite any authority or

make any legal arguments supporting relief specific to CR 59(a)(7) or CR 59(a)(9).

      We conclude the trial court did not abuse its discretion in denying Pinto's

motion for reconsideration.


      We affirm.




WE CONCUR:




   4~fi




       39 CR 59(a)(4) ("Newly discovered evidence, material for the party making the
application, which the party could not with reasonable diligence have discovered and
produced at the trial.").


                                          13
