May 27, 2015
Expert witnesses play a critical role in civil litigation in California, and practitioners must not only be able to retain their own competent experts, but they must also be well-versed in how to challenge and exclude the testimony of opposing witnesses.
One of the most promising tools for such exclusion is the motion in limine, which the California Supreme Court has discussed in great detail.
This article discusses the types of motions in limine that attorneys may take advantage of in their efforts to exclude opposing expert witnesses.
The California courts first made clear the importance of the motion in limine, with respect to excluding expert testimony, in Kelly v. New West Federal Savings. 49 Cal. App. 4th 659 (1996).
As one legal analyst explained: Motions in limine…permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial. They minimize side-bar conferences and disruptions during trial, allowing for an uninterrupted flow of evidence.
Finally, by resolving potentially critical issues at the outset, they enhance the efficiency of trials and promote settlements. Brian D. Chase, Expert Witnesses and Motions in Limine, Consumer Attorneys of California Forum, 2002.
The advantages of a motion in limine are myriad and substantial.
Rather than forcing practitioners to resort to a motion to strike expert testimony, which may have already influenced a jury, they are a prophylactic measure that prevents the evidence from ever being admitted.
What follows are the first three components of a list of the various motions in limine that attorneys who wish to challenge expert evidence may avail themselves of.
(1). Motion to Exclude Undesignated Experts
Under the California Code of Civil Procedure (C.C.P.), when a party wishes to use the testimony of an expert witness, that party must disclose the identity and other information regarding the matters about which the expert plans to testify to their opponent prior to trial. See C.C.P. § 2034(j)(1).
In the event that such a designation is not made, opposing counsel may make a motion in limine to exclude that expert from giving evidence at trial. See id.
In fact, the [f]ailure to designate a witness as an expert in the designation required by C.C.P. § 2034, who will offer expert testimony at trial, requires exclusion of that witness properly facilitated through an in limine motion. Chase, supra.
Only one exception to this rule exists, and that is with respect to testimony given on rebuttal, but even that exception is narrowly-construed and such testimony is seldom admitted.
(2). Motion to Exclude Insufficiently Designated Experts
As in the case of an undesignated expert, an expert who is not sufficiently designated by opposing counsel prior to trial can be excluded by a motion in limine.
This motion is of particular utility with non-retained experts, such as government officials.
According to the C.C.P., the failure to provide adequate information about an expert, whether the expert is retained or not, should result in the same outcome as with a non-designated expert: the evidence should be excluded. See C.C.P. § 2034(j)(1).
In prior case law, the courts have ruled in favor of motions in limine, where, for example, the expert’s name and address were not provided. See, e.g., Kalaba v. Gray, 116 Cal. Rptr. 2D 570 (2002).
(3). Motion to Exclude Testimony Not in the Declaration
Attorneys who plan to utilize expert witnesses are required to disclose what matters the expert will testify to at trial.
In the event that an expert attempts to testify about an issue or topic that was not disclosed before trial, that testimony can be excluded. See C.C.P. § 2034(f)(2)
(B). The California Supreme Court explained the rationale for such exclusion, stating that: [T]he exclusion sanction…applies when a party unreasonably fails to submit an expert witness declaration that fully complies with the content requirements of subdivision (f)(2), including the requirement that the declaration contain ‘[a] brief narrative statement of the general substance of the testimony that the expert is expected to give.'” Bonds v. Roy, 20 Cal. 4th 140, 147 (1999).
Clearly, the Court intended for fair play, and the rationale for the exclusion of unanticipated testimony is that it fails to give all parties the opportunity to adequately prepare themselves and, accordingly, has a prejudicial effect on the party who is caught off guard.
This particular motion is very common and of great utility to litigators. Moreover, the courts respond favorably to it.
(4). Motion to Exclude Testimony Not in the Deposition
It is standard practice for attorneys to depose opposing expert witnesses in an effort to learn what an expert plans to testify to, to uncover any weaknesses in an expert’s theories, and to prepare to cross-examine that expert at trial.
The motion to exclude testimony that was not set forth in a particular expert’s deposition may be the most common type of motion in limine that is used to challenge experts, and it can be a highly effective tool when used properly. See, e.g., Brian D. Chase, Expert Witnesses and Motions in Limine, Consumer Attorneys of California Forum, 2002.
In cases where an expert’s trial testimony is beyond the scope of what was testified to during the deposition, the California Supreme Court has stated that excluding such testimony is appropriate. See Jones v. Moore, 80 Cal. App. 4th 557 (2000).
In Jones v. Moore, a plaintiff’s expert claimed that the opinions he gave during his deposition represented the entirety of his conclusions pertaining to a medical malpractice case, and that if the expert formed any new or additional theories, the defendant would be notified prior to the actual trial. See id.
At trial, however, the expert sought to proffer several new opinions not previously disclosed, which [the Court] properly excluded. Chase, supra (discussing Jones v. Moore).
The Court based its decision on the California Code of Civil Procedure (C.C.P.), specifically referencing C.C.P. § 2034. Jones, supra.
Specifically, the Court argued that an important goal of section 2034 is to enable parties to properly prepare for trial, and ‘[a]llowing new and unexpected testimony for the first time at trial is contrary to that purpose. Jones, supra, at 564-566.
Motions in limine based on the ground that that an expert failed to disclose certain opinions during their deposition are very effective, but attorneys must be aware of one critical point: in order to succeed with this type of motion, litigators must ask opposing experts during the deposition if the expert has expressed all of the opinions that they intend to provide. See Chase, supra.
In addition, during the deposition, attorneys should ask the opposing expert to notify them in the event that the expert formulates any new opinions that may affect their future testimony. Id.
(5). Motion to Exclude Improper Expert Opinion
Although expert witnesses may testify about a variety of issues, there are certain instances where they are not permitted to give their opinions and where, therefore, attorneys can get expert testimony excluded with a motion in limine.
Expert witnesses may not, for example, offer their opinions on any issue that is considered a question of law. Id.
An expert witness may not offer their interpretation of a legal statute or regulation, nor may an expert witness give their opinion on how a contract should be legally interpreted. Id. (citing See People v. Torres 33 Cal. App. 4th 37, 45-46 (1995) (expert’s interpretation of the meaning/purpose of a statute held improper); Cooper Companies v. Transcontinental Ins. Co. (1995) 31 Cal. App. 4th 1094, 1100 (expert’s interpretation of the meaning of a contract is inappropriate).
Accordingly, Where an expert in deposition has attempted to offer opinion testimony concerning a statute, regulation, contract or other legal document, or has offered an opinion that such statute or regulation was violated, or such contract breached; any such opinion testimony would be and is properly excluded on an in limine motion. Id.
Furthermore, at any other time prior to or during trial, attorneys may make a motion to exclude such opinion testimony and, under the California rules, such motions should be granted.
(6). Motion to Exclude Substituted Supplemental Expert
One technique upon which many attorneys in California rely is that of substituting one expert witness for another, under the supplemental expert witness procedure permitted by § 2034(h) of the C.C.P. See id. Such situations often arise when both parties have disclosed the experts they will be using, and one party realizes that the opponent’s expert is superior to their own.
Therefore, the party who wishes to make a substitution will do so, citing the C.C.P. as permitting such an action. However, such supplemental witnesses and substitutions can almost always be excluded by a motion in limine in California.
According to the Court’s opinion in Basham v. Babcock, A party may submit a supplemental expert witness list within 20 days after the exchange, but only ‘if the party supplementing the expert witness list has not previously retained an expert to testify on that subject.’(§2034, subd. (h).) It follows that a party who has designated an expert to testify on a particular subject may not use a supplemental list to substitute experts…. To permit a supplementally-designated expert to render testimony on the same subject matter areas as an initially-designated expert violate[s] the letter and spirit of section 2034. Id. (citing Basham v. Babcock, 44 Cal. App. 4th 1717, 1723 (1996).
Accordingly, attorneys who are faced with an opponent who substitutes a witness after initially disclosing a different expert may mount a challenge through a motion in limine to get the supplemental expert excluded.
(7). Motion to Exclude Undesignated Rebuttal Evidence
The issue of when certain rebuttal evidence in the form of expert testimony is admissible is one that puzzles many members of the legal profession.
This uncertainty arises because the California Code of Civil Procedure (C.C.P.) does, on face, appear to allow an attorney to introduce a previously undesignated expert witness (or surprise expert witness) to testify on rebuttal in certain circumstances. See C.C.P. § 2034(m)(2) (permitting an expert to be called to impeach the testimony of an expert witness offered by any other party at trial.).
However, the C.C.P. itself states that such testimony, which is used to impeach another party’s expert, may include testimony to the falsity or non-existence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion. Id.
Many times, parties will attempt to call a previously undesignated expert under the guise of ‘rebuttal’ testimony, when in fact the real purpose is to contradict a properly-designated adversary’s expert’s opinion(s). Brian D. Chase, Expert Witnesses and Motions in Limine, Consumer Attorneys of California Forum, 2002.
When this practice occurs, it is a violation of the C.C.P., and a motion in limine to exclude such evidence is proper.
The distinction made by the California courts as to whether an undesignated rebuttal expert is properly introduced deals with determining the purpose of the witness’s testimony.
If the testimony is used to question a foundational fact that a previous expert has testified to, it is admissible.
For example, if a document examiner as an undesignated rebuttal expert provided testimony impeaching the authenticity of documents that an opponent’s designated witness based an opinion upon, the undesignated witness’s testimony is permissible.
However, in the event that, on rebuttal, the undesignated expert offers testimony that contradicts the opinion or ultimate conclusion of the opposing expert, such testimony is not allowable and is in violation of the C.C.P. As one legal analyst concludes, Given the frequent potential for ambiguity over whether undesignated expert rebuttal testimony is on one hand contradiction (proscribed) versus impeachment of foundational facts (the proper purpose for undesignated rebuttal expert evidence), a proper in limine motion should be made to exclude any undesignated so-called rebuttal testimony which has any tendency to contradict any designated expert’s opinions. Id.
** (8). Motion to Exclude Recitation of Hearsay**
Although it is commonly accepted that expert witnesses may generally rely upon otherwise inadmissible hearsay evidence in giving their testimony, the California laws treat the situation differently when an expert is used as a conduit for admitting hearsay evidence.
Specifically, there are two practices that are improper with regards to experts and hearsay evidence:
Expert testimony cannot be used to recite the out of court opinions of undesignated experts. Id. It is improper for an attorney to use an expert witness’s testimony as a means for the recitation of the contents of expert and percipient documentary hearsay. Id. Although an expert in California can rely upon hearsay in reaching a conclusion, that expert may not attempt to recite hearsay evidence into the trial record under the guise of expert opinion. See id., e.g. (citing People v. Coleman, (1985) 38 Cal. 3d 69, 92). If an expert is reciting hearsay evidence, the danger of such recitation is that the expert is essentially ask[ing] the trier of fact to adopt the ‘opinion’ of the hearsay declarant as support for, in amplification of, or as the sole giver of the live-witness’s opinion testimony. Id. In the event that an expert witness does attempt to introduce inadmissible hearsay evidence in this manner, the California courts have acknowledged that such an act can be so prejudicial to the other side that even a limiting instruction by the court may be inadequate to remedy the harm. Chase, supra, (in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem).
Instead, the evidence should be excluded. To minimize the risk of improper hearsay evidence being recited into an expert’s testimony (and therefore becoming part of the record and potentially evidence that a jury would consider in rendering its verdict), attorneys will require the assistance of the motion in limine.
Specifically, there are two motions that practitioners should prepare in order to challenge expert testimony that recites inadmissible hearsay evidence:
Attorneys should prepare a motion in limine, after an opposing expert witness’s deposition, requesting the exclusion of all such hearsay matters referenced by the expert on the grounds that a limiting instruction would be futile, since in most such instances, the expert has typically asserted…hearsay documents and out–of-court opinions for no purpose other than for the truth of the matter asserted under the guise of ‘opinions.’ Id. Attorneys should advance a motion in limine that requests the court to exclude any and all documentary evidence upon which an opposing expert witness may rely. Any evidence of a documentary nature, from treatises to newspapers, should not be referenced or recited in an expert’s testimony, and litigators should challenge such potential admissions. In addition to the motions in limine, attorneys can object to the introduction of such documentary recitation at trial, but the prophylactic nature of the motion in limine makes it highly desirable and avoids the problem of jurors being potentially influenced by inadmissible hearsay evidence that has already been recited, even if the jury is subsequently told to disregard such evidence and given a limiting instruction.
(9). Motion to Exclude Insufficient Causation Evidence
To establish causation in California, expert testimony is required. See, e.g., Visueta v. General Motors, 234 Cal. App. 3d 1609, at 1616 (1991).
In addition, attorneys must provide expert evidence to prove that a reasonable probability exists to establish the purported cause of an injury. See, e.g, Brian D. Chase, Expert Witnesses and Motions in Limine, Consumer Attorneys of California Forum, 2002. Reasonable probability, as opposed to mere possibility, has become the minimum threshold for causation for nearly every form of tort action in California. Id.
As the Supreme Court of California explained, there is a distinction between a reasonable…’probability’ and a…’possibility.’…There can be many possible ’causes,’ indeed, an infinite number. …A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.
This is the outer limit of inference upon which an issue may be submitted to the jury. Visueta v. General Motors, supra.
Two implications arise from the Court’s reasoning:
First, attorneys who wish to challenge expert testimony may do so by challenging whether the opposing side’s expert(s) proved that there was a reasonable probability with respect to the issue of causation.
In the event that such is not the case, the causation evidence may be properly challenged and excluded.
The second and perhaps more important implication of the reasonable probability test is that attorneys can take advantage of such a test before the case ever reaches trial.
During a deposition of an opposing expert, who has the responsibility of proving causation, practitioners can cross-examine the causation expert in detail.
In the event that an opposing causation expert, during the deposition, testifies that they cannot state that a cause of an injury-producing event was more probabl[e] than not, [their] testimony becomes inadmissible speculations as to mere ‘possibilities,’ and that causation opinion is properly excluded on an in limine motion. Chase, supra.
An attorney who prevails on the matter of causation via a motion in limine may be able to avoid a trial completely by getting the causation testimony excluded, thereby putting plaintiffs in a position as to no longer be able to prove a critical component of their case.
Parties who are unable to prove a reasonable probability of causation cannot go forward with their complaint in its current form, and they must resort to attempting to substitute or supplement their original causation expert with another party.
However, if such a substitution occurs, the attorneys who sought exclusion of the original causation expert are in excellent shape: not only have they disproved one of the necessary elements of the plaintiff’s case, but they can also use the motion in limine, discussed in Part Two of this series, which provides for the exclusion of supplemental or substituted expert witnesses, under C.C.P. § 2034(h).
(10). Motion to Exclude based on Contrary or Inadequate Facts
It is well-settled law that experts cannot base their opinions on speculation or conjecture, unproven facts, insufficient data, or on facts that are contrary to the evidence and/or ignore the evidence. Chase, supra.
In practice, it may often be difficult to prevail on a motion in limine that is based on such grounds when such a motion is made before trial. Id.
However, there are instances when such a motion is proper and may be granted more easily by the trial court.
For instance, in the deposition of an opposing expert, if the expert’s opinion appears to be facially preposterous given the actual facts and circumstances surrounding the litigation, a motion in limine to exclude such testimony should be made.
Fortunately, before trial, attorneys often have the opportunity to learn if an expert’s opinion is based on insufficient facts or is contrary to the evidence, because the California Supreme Court decreed that no expert’s opinion not revealed in deposition may be used at trial, which means that there is little an expert may resort to at trial not previously disclosed in [their] deposition. Id. (referencing Jones v. Moore, 80 Cal. App. 4th 557 (2000)).
In instances where an expert relies on insufficient or contrary facts, the situation is similar to one where an expert fails to prove causation adequately.
Two options are available to the attorney who wishes to challenge such expert evidence.
First, a motion in limine, based upon insufficient facts or facts that are contrary to the evidence can be made to exclude the expert’s testimony.
If, during a deposition, the expert reveals an opinion that is not adequately rooted in fact, this motion should be made. In addition, if a party seeks to rehabilitate a facially preposterous expert opinion, practitioners have the option of making a motion in limine under C.C.P. § 2034(h), which deems any substitutions or supplemental expert opinions inadmissible.
As one legal commentator concludes, It is difficult to defend an outrageous opinion contrary to facts in evidence and/or based upon facts not in evidence [on the ground] that there may be other evidence not previously disclosed in deposition to rehabilitate an otherwise unfounded opinion.
At the very least,…even in a closer call,…a motion in limine should…be made in the alternative as a motion for an Evidence Code § 402 examination of the expert at the time of…testimony, to give the judge notice and some information to begin thinking about the issues in question before an ultimate admissibility decision must finally be made. Id.
(11). Motion to Exclude Cross-Examination of Expert, Based on Materials Not Considered
Unlike the motions discussed in previous parts of this series, this particular motion in limine deals with preventing opposing counsel from challenging or excluding expert testimony.
Instead, this type of motion is useful to attorneys who have friendly experts, whom they wish to protect from cross-examination that is too broad and violates California’s statutes concerning evidence and procedure.
As one legal analyst explains, when confronted with an expert witness, a frequent tactic that adverse counsel relies upon in challenging expert testimony is to “show the expert new articles, treatises, journals and other published materials the expert may never previously even have been aware of, for the purposes of laying a foundation to elicit favorable answers to hypothetical questions assuming the truth of the newly supplied materials.” Brian D. Chase, Expert Witnesses and Motions in Limine, Consumer Attorneys of California Forum, 2002.
However, this form of cross-examination is generally prohibited by the California Evidence Code (C.E.C.). See C.E.C. § 721(b).
According to Section 721(b) of the C.E.C., attorneys may not cross-examine expert witnesses on every material (e.g. articles and other publications) that exists in that expert’s particular field.
To require an expert to be questioned on any (or every) possible publication in a given field, especially in a case where that expert has not referred to, relied upon, or considered in giving an opinion, is an unfair tactic. See id., e.g. To wit, C.E.C. § 721(b) makes clear that such fishing expeditions by cross-examiners is prohibited “unless [the opposing] witness has referred to, considered, or relied upon such publication in arriving at or forming [their] opinions, the publication in question has been admitted into evidence (difficult given its hearsay character), or it has been established by expert testimony or judicial notice as reliable.” Chase, supra.
When attorneys cross-examine adverse experts by referencing publications that do not meet the exceptions of C.E.C. § 721(b), litigators may make a motion in limine to challenge such cross-examination and, in effect, rehabilitate their friendly witnesses.
One note of caution should be made with respect to the particular issues that arise when this type of cross-examination takes place.
Attorneys who wish to use a friendly expert witness at trial should expect their expert to be deposed.
In many instances, rather than springing such new, “surprise” materials upon opposing experts at trial, litigators will mention the publication during the deposition of an opponent’s expert.
The public policy behind prohibiting attorneys from bringing up these materials at trial is to prevent lawyers from cross-examining opposing experts on materials that the expert could not have reasonably anticipated or considered.
However, clever litigators are aware that their questions about unknown materials will often be precluded by the courts, in the event that opposing counsel makes a motion to prevent a friendly expert from being required to consider any and every hypothetically damaging publication that the expert was previously unaware of. Instead of cross-examining an adverse expert at trial, these attorneys will often raise the issue of the unknown publication during the opponent’s expert’s deposition.
This tactic, as well as its problems for attorneys with friendly experts whose testimony is intended to be admitted, can be difficult, because “[w]here an expert has been…confronted in deposition by the adverse party with such new matters, an obvious problem arises if the expert is asked to review an article and thereafter asked questions on it, since [the expert] will then have ‘reviewed’ the matter.” Chase, supra.
In such cases, counsel should seek to protect their friendly experts, and “it is proper either to instruct a witness not too review the matter, or to adjourn the deposition and seek a protective order.
Where it is suspected that the same tactic may be used at trial before the jury, the motion in limine should be made prophylactically in advance.” Id.
Accordingly, attorneys must be on their guard and watch for any situations that arise where it appears that opposing counsel is seeking to get around the scope of C.E.C. § 721(b), either during deposition or at trial, and where it becomes apparent that the opponent is attempting to force an expert to take into account materials that the expert could not have been expected to be aware of or to have prepared for, attorneys should make a motion in limine, seeking to preclude such cross-examination of their friendly experts, whether before or during trial.
It must be made clear to the court that the intent of C.E.C. § 721(b) was to disallow cross-examination of an expert that is based upon materials the expert was unaware of or did not take into consideration and that, furthermore, asking an averse expert to “examine” or “review” a publication, simply to be able to argue that the expert has now become familiar with such material, is not in keeping with intent of or policy behind C.E.C. § 721 (b) and the court should therefore take prophylactic measures to prevent such types of cross-examination from occurring.
In dealing with opposing expert witnesses, one cannot overstate the importance of the motion in limine as one of the most valuable tools an attorney can use to get such evidence excluded.
It is clear that the motion in limine can be of great use to attorneys who wish to exclude opposing expert testimony.
What should be equally clear is that, in California, litigators should be aware of both how to challenge such testimony with a motion in limine and when the challenge made by an in limine motion should assist attorneys in preventing their opponents from taking advantage of an expert witness whose testimony should not be precluded, even with very vigorous and clever cross-examination techniques.