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Experts
In order to defeat a motion for summary judgment the opinion of an expert witness cannot be speculative or conjectural.
In
Nardizzi vs. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 39 Cal.Rptr.3d 530, plaintiffs sued a car dealer that had serviced their car approximately 5 weeks before the brakes on the car failed, causing an accident. Defendants moved for summary judgment based upon their expert’s conclusion that the servicing of the brakes did not cause their failure. His opinion was based upon factual testimony that the brakes were fully functional up until the time of the accident, the warning light indicating low brake fluid had not illuminated and immediately after the accident there was no evidence of brake fluid leaks or that the "bleeder screws" had been opened. In opposition to the motion plaintiff offered the opinion of an expert who opined that the only way for the brake fluid reservoir to be found empty following the accident was for the brake fluid to have leaked out of the brake system based upon the dealer’s failure to property tighten the "bleeder screws". The court found this opinion to be speculative as the expert did not address the undisputed facts that the bleeder screws were found to be properly closed following the accident, that the warning light on the dashboard had not been triggered by reduced fluid levels before the accident and that there had not been any loss of braking power until the accident actually occurred.
Attorney disqualified from testifying as expert witness against former client.
In
Brand vs. 20th Century Insurance Company (2004) 124 Cal.App.4th 594, 21 Cal.Rptr. 380, defendant moved to disqualify plaintiff's expert witness in a bad faith action on the ground that the expert, an attorney, had previously represented the insurer. The trial court denied the motion to disqualify finding that a substantial relationship between the attorney/expert and the insurer could not be established based on the passage of 12 years since the representation. The Court of Appeal reversed and ordered that the attorney be disqualified from testifying as an expert. The attorney had written coverage opinions for the insurer, represented it in 14 disputes and also had trained insurance adjusters and lawyers. The attorney's representation of the insurer was personal and direct and therefore his knowledge of confidential information was presumed. The passage of 12 years was insufficient to overcome that presumption.
Trial court found to have improperly barred treating physician from testifying to expert opinions based upon the fact that the physician had not reviewed the plaintiff's medical records at the time of his deposition.
In Fatica v. Superior Court (2002) 99 Cal.App.4th 350, 120 Cal.Rptr.2d 904, Plaintiffs designated a treating physician as an expert witness. At his deposition the physician testified that he had not reviewed any of the plaintiffs' records concerning prior medical treatment. During the deposition plaintiffs' attorney permitted the physician to be fully deposed concerning his diagnosis, treatment and opinion as to causation. Defense counsel did not seek to further depose the physician but instead filed a motion in limine to prohibit the physician from testifying at all claiming that he was unable to complete a meaningful expert witness deposition of the physician because of his failure to review the records.
The trial court ruled that the physician would be permitted only to testify as a percipient witness and would not be allowed to testify as to any opinions expressed during his deposition. The Appellate Court stayed the trial and issued a writ of mandate directing the Superior Court to permit opinion testimony from the physician. The Appellate Court stated that if the trial court believed defense counsel in fact had been "sandbagged," the court could order the physician to submit to a further deposition on such terms and conditions as were appropriate, but it could not issue sanctions. The Appellate Court held that for a treating physician no expert declaration would be required under C.C.P. § 2034 and that the treating physician could testify concerning his opinions regarding causation and standard of care. The Court characterized the failure to have reviewed the prior medical records as a minor infraction which was easily correctable.
Experts are limited at trial to opinions expressed at deposition.
In Jones v. Moore (2000) 80 Cal.App.4th 557, 95 Cal.Rptr.2d
216, the Second District held that plaintiff's expert witness
in a malpractice action was properly precluded at trial from
giving testimony regarding alleged breaches of the standard
of care which went beyond the scope of deposition testimony,
even though plaintiff's expert witness declaration was arguably
broad enough to encompass the testimony in question. The court
reasoned that, where during the deposition the expert stated
he had given all of his opinions, and if he had others, he would
notify counsel, but did not, permitting him to broaden his testimony
would frustrate the purposes of Code of Civil Procedure § 2034.
Treating physicians are not "retained experts" requiring
a declaration under California Code of Civil Procedure § 2034(a)(2).
The California Supreme Court reversed the Fourth District
Court of Appeals and held that, even though a treating physician
offers testimony regarding causation, not merely percipient
observations, he is not a "retained expert" requiring plaintiff
to provide an expert witness declaration pursuant to Code
of Civil Procedure § 2034(a)(2) and Code of Civil Procedure
§ 2034 (f)(2). See, Schreiber v. Estate of Kiser (1999) 22
Cal.4th 31, 91 Cal.Rptr.2d 293. In so ruling, the court specifically
disapproved of the ruling in Plunkett v. Spaulding (1997)
52 Cal.App.4th 114, 60 Cal.Rptr.2d 377. The court reasoned
that, unlike truly "retained" experts, the identity and opinions
of treating physicians are not privileged. They can be deposed
regarding those opinions before the disclosure of experts
pursuant to Code of Civil Procedure § 2034.
The
trial court should exclude expert testimony if the expert witness
declaration submitted at the time of designation does not provide
notice of the subject matter of the testimony.
In Bonds v. Roy (1999) 20 Cal. 4th 140, 83 Cal.Rptr. 2d 289
the defendant in a medical malpractice case designated a doctor
to testify about the scope of plaintiff's disability before
and after surgery. At trial, defense counsel sought to broaden
the scope of his expert's testimony to comment upon the "standard
of care" owed by defendant. The trial court refused to permit
the expert to give testimony on that subject. The Court of Appeal
affirmed.
Also affirming the trial court's decision, the California Supreme
Court noted that exclusion of the testimony was mandated by
Code of Civil Procedure section 2034(k). Permitting expert testimony
on subjects not mentioned in the declaration required under
Code of Civil Procedure section 2034(f)(2) would frustrate the
purpose of the statute which envisions full disclosure so that
the opposition may properly prepare for trial.
In
federal court, the testimony of all experts (not just scientists)
is subject to the court's scrutiny outside the presence of the
jury to ensure reliability as well as relevance.
Over five years ago, the United States Supreme Court rendered
its decision in Daubert v. Merrell-Dow Pharmaceuticals. Inc,
509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993), interpreting
Rule 702 of the Federal Rules of Evidence as requiring the trial
court to act as a reliability "gatekeeper" in determining the
admissibility of proffered expert testimony. In analyzing scientific
theories, the trial court is to consider testing, peer review,
error rates, and "acceptability" in the relevant scientific
community in determining reliability of the evidence.
In Kumho Tire v. Carmichael (1999)
526 U.S. 137, 119 S. Ct. 1167. plaintiff sought to offer expert testimony from an
engineer specializing in tire failure analysis whose theories
defendant challenged as unreliable and inadmissible under Federal
Rules of Evidence 702. The trial court excluded the testimony.
The Eleventh Circuit Court of Appeals reversed, holding that
the Daubert decision was limited in application only to scientific
evidence, not the testimony of the engineer it described as
"skill-based" or "experience-based." In reversing the Eleventh
Circuit decision and reinstating the judgment of the District
Court, the Supreme Court explained that its earlier decision
in Daubert is applicable to all expert testimony.
Although not specifically applicable to trials in state court
in California, the Kumho decision appears consistent with the
California Supreme Court's seminal decision in People v. Kelly,
(1976) 17 Cal. 3d 24, 549 P.2d 1240, 130 Cal.Rptr. 144.
Failure
to describe the general substance of a treating physician's
opinion testimony during the disclosure of experts pursuant
to Code of Civil Procedure §2034 precludes that expert from
testifying about a causal connection between the accident and
the injuries allegedly sustained.
In Schreiber v. Kaiser (1998) 68 Cal.App.4th 119, 80 Cal.Rptr.2d
153, plaintiff designated seven treating physicians when he
disclosed experts pursuant to Code of Civil Procedure § 2034.
However, he provided no narrative statement as to the general
substance of the testimony they would give. He argued that they
were not "retained" experts, and therefore no such narrative
was required under § 2034(f)(2). The court concluded that, when
a treating physician wishes to offer testimony concerning causation,
he is providing expert testimony, not merely percipient observations
as a treating physician. They reasoned that, when a treating
physician agrees with the litigant to make himself available
to provide opinion testimony, even if there is no formal remunerative
agreement, he is "retained" for the purposes of Code of Civil
Procedure § 2034(f)(2). In so holding, the court abandoned and
reversed its decisions in Hurtado v. Western Medical Center
(1990) 222 Cal.App.3d 1198, 272 Cal.Rptr. 324 and in Huntley
v. Foster (1995) 35 Cal.App.4th 753, 41 Cal.Rptr.2d 358.
From the defense perspective, the issue becomes how best to
exploit the situation when plaintiff's counsel violates the
holding of the Schreiber case. A motion in limine would get
the issue decided prior to the commencement of trial (and in
some cases, might help dispose of the case at that juncture).
However, the court might allow plaintiff to remedy the oversight
by providing the narrative statement and permitting the treating
physician to provide expert testimony re causation. Alternatively,
the issue might be raised by objection with the treating physician
on the stand.
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