June 03, 2015
Civil litigators in California will nearly always, if not always, find themselves dealing with both friendly and adverse expert witnesses from the time a civil action is filed until a verdict has been given. This article provides a review and brief explanations of some of the most important cases that have arisen out of California and concern when, whether, and if expert witness testimony is permissible in civil litigation.
Each of the cases listed below is mentioned to iterate a particular principle of law with respect to utilizing expert witnesses in California. These cases are not chronologically ordered; instead, each case is distinguished and listed by referencing the proposition that it stands for.
(1). The Purpose and Parameters of Motions In Limine Regarding Expert Testimony: Kelly v. New West Federal Savings was of great import in the history of California case law addressing the purpose, utility, and limitations of the motion in limine when such a motion is made by attorneys wishing to exclude opposing expert evidence. See Kelly, 49 Cal. App. 4th 659 (1996). The facts in Kelly pertained to expert testimony regarding the elements of a personal injury case. Motions in limine were made in an attempt to exclude the entirety of certain expert witness testimony.
In Kelly, the California Supreme Court emphasized that the purpose of an in limine motion ìis to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. Id., at 669-70.
In addition to discussing the purpose of such motions, Kelly emphasized that certain limitations exist with respect to motions in limine to exclude expert evidence and that, while such motions can be made properly, they have also been used as a tool of abuse, particularly by defense attorneys. Id., at 669. Ultimately, Kelly stands for the proposition that when dealing with motions in limine and experts, the motions made should assist the judge in excluding expert testimony that is inadmissible, but that such motions can often be abused or over-used and are therefore subject to the same standards of proof as any other type of motion.
(2). Designating Experts and Non-Retained Experts: In Schreiber v. Estate of Kiser, the California Supreme Court clarified certain issues pertaining to non-retained expert witnesses. 22 Cal. 4th 31 (1999). Ordinarily, when a party wishes to have a friendly expert testify at trial, that expert must be designated with certain information given to opposing counsel regarding what the expert is expected to testify about. However, Schreiber, a medical malpractice case, held that the plaintiffs were permitted to designate their treating physicians (and, at trial, use those physicians to act as experts on such matters as causation, standard of care, and damages), but that the information the plaintiffs would have been required to disclose with a retained expert did not have to be revealed in the case of the treating physician. In Schreiber, the Supreme Court held that although treating physicians are percipient experts, their testimony is not limited to merely personal observations. Id. Ultimately, Schreiber means that a non-retained percipient expert is permitted to express any opinions that were formed during the course of a party’s treatment, “including standard of care opinions. The Court’s opinion appears to embrace within the “non–retained” classification any expert whose opinion is formed ordinarily during the transactional course of his or her ordinary work, such as coroners, fire investigators, investigating police officers and public accident investigators.” Brian D. Chase, Expert Witnesses and Motions in Limine, Consumer Attorneys of California Forum, 2002.
(3). The Limits of Expert Witness Discovery: Allen v. Superior Court was a case that helped balance a party’s interest in discovery of an expert witness on the one hand, versus that expert’s privacy interests on the other. 151 Cal. App. 3d 447 (1984). Specifically, Allen involved a plaintiff’s attorney who wished to have access to any and all records of an adverse expert witness physician that pertained to that physician’s medical-legal experience, and also to get information about any other work the physician had done for any insurance company during a five-year period. The physician expert witness moved for a protective order, asking the court to deny the plaintiffs’ request. The Allen court held that the doctor was correct and that, in balancing all of the factors, the physician’s privacy interests outweighed the interests of the plaintiff, in part because the specific information which the plaintiffs were seeking could have been located through a less intrusive manner. The court emphasized that no party has a right to unlimited discovery of an expert, particularly when dealing with comprehensive records and lengthy periods of time. Moreover, the court in Allen expressed that if the plaintiffs wished to show bias (by claiming the expert’s time was largely spent on, and income largely derived from, defense litigation), the plaintiffs did not need to know every detail of the expert’s work. Bias could be proven without unduly burdening the expert and that expert’s right to privacy.
California case law provides numerous resources to help guide litigators in dealing with issues pertaining to expert witnesses. Kelly, Schreiber, and Allen are just a few of those cases that help clarify the rules and principles that the California courts adhere to when expert witnesses are involved. Given that nearly every type of civil litigation in California requires expert testimony, it behooves legal practitioners to familiarize themselves with how the courts will rule on these matters.