Dr. Irwin gave his opinion to a reasonable degree of medical certainty that the pulmonary aspiration occurred first and then cardiac arrest occurred second. He testified that his opinion was based on the absence of any history of cardiac problems in Caster and on his findings on physical examination of Caster. He stated he felt comfortable testifying that this was an accidental choking. However, Dr. Muskett did not give an opinion to a reasonable degree of medical certainty as to what was the cause of Caster's death. He merely speculated on possibilities.
Speculative statements are insufficient to raise a genuine issue of material fact.
Smith v. State Farm Ins. Dr. Muskett's failure to state a positive opinion as to the cause of Caster's death is understandable, given the lack of foundation for his opinion. He never examined Caster, either before or after Caster's death. His opinion was based only on his reading of the medical records associated with Caster's death and on the deposition of Dr. Irwin. Neither the medical records nor Dr. Irwin's deposition provides a foundation for the opinion Dr. Muskett expressed.