Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Darrel E. Parker, Executive Officer
7/6/2016 4:40:04 PM
By: Terri Chavez, Deputy
(3) Prohibits Plaintiff from mentioning, interrogating upon, or in any other manner
conveying to the jury any opinions of their experts other than those stated at the
#UJN depositions of those experts; and that the Court further order counsel to instruct
their witnesses as to the same.
Ms. Hulme makes this motion under Code of Civil Procedure Section 2034.010, et seq. and
California case law set forth below. The grounds for this motion are that allowing experts to offer
\OOO\]O\£II
opinions or documents other than those stated or presented at their deposition thwarts the purposes
served by expert depositions and would unfairly prejudice Defendants.
10 Ms. Hulrne bases this motion on this notice of motion, the supporting memorandum, the
11 pleadings and papers on file in this action, and upon such evidence and argument as may be
12
presented before or at the hearing of this matter.
13
POINTS AND AUTHORITIES
14
A. Expert testimony at the time of trial is limited to opinions and bases given at the time
15 of deposition if the opposing party has no notice or expectation that the expert will
offer the new testimony.
16
17 in Code of Civil Procedure Section
The purpose of expert—witness discovery, as embodied
18 of what an expert will testify to at
2034.010, et seq., is to give fair notice to the opposing party
19 whether to take the expert’s deposition, to
trial. Expert discovery allows the parties to determine
20 and to select an expefi who can respond with a
explore the relevant subject area at the deposition,
21
competing opinion on that subject area.1
22 is to allow the parties to properly
One of the goals of CCP Section 2034.010, et seq.
23
prepare for trial and “allowing new and unexpected testimony for the first time at trial is contrary
24 2
of this expert witnesses must be limited to
to that purpose.” To permit accomplishment goal,
25
26
27
4‘h 146-147.
Roy (1999) 20 Cal.
1
See Bonds v. 140,
Jones v. Moore (2000) 80 Ca]. App. 4"1 557, 566.
2
28
. 2 _
JENNIFER HULME’S MOTION IN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO
THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION
those opinions offered at their deposition, and not permitted to expand on them nor offer different
conclusions.
In Jones v. Moore, the Court of Appeal upheld the trial court’s decision to exclude the trial
testimony of the plaintiff 5 expert where the expert had, at his deposition, testified that those were
the only opinions he intended to offer, but if he formed any other opinions before trial, he would
notify defense counsel. The expert never notified defense counsel of any other opinions he
reached after his deposition, but nevertheless tried to introduce such testimony at the time of trial.
\OOO\]O‘\
According to the court, “when an expert deponent testifies as to specific opinions and
affirmatively states those are the only opinions he intends to offer at trial, it would be grossly
10 unfair and prejudicial to permit the expert to offer additional opinions at trial.”3
11 In Kennemur v. State of California,
4
the Court of Appeal ruled that “a party must disclose
12 either in his witness list or at his expert’s deposition, if the expert is asked, the substance of the
13 facts and opinions which the expert will testify to at trial. Only by such a disclosure will the
14 opposing party have reasonable notice of the specific areas of investigation by the expert, the
15 opinions he has reached and the reasons supporting the opinions, to the end the opposing party can
16 prepare for cross-examination and rebuttal of the expert’s testimony.” The court explained:
17
The Legislature has singled out the pretrial discovery of expert opinions for special
18
treatment. When appropriate demand is made for exchange of expert witness lists, the
party is required to disclose not only the name, address and qualifications of the witness,
19 but the general substance of the testimony the witness is expected to give at trial
(Predecessor Section 2037.3.) In our View, this means the partv must disclose either in
20 his witness list or at his expert’s deposition, if the expert is asked, the substance of the
facts and the opinions which the expert will testifv to at trial. Only by such a disclosure
21
will the opposing party have reasonable notice of the specific areas of investigation by the
22 expert, the opinions he has reached and the reasons supporting the opinions, to the end the
opposing party can prepare for cross--examination and rebuttal of the expert s testimony.
23
24
25
26
27 3 4”1 at p.
Jones v. Moore, supra, 80 Cal.App. 565 (emphasis added).
4
(1982) 133 Ca1.App. 3d 907
5
28 Id., atp. 919.
_3 _
JENNIFER HULME’S MOTION fN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO
THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION
N0 expert depositions have taken place in this case yet. Experts that are deposed will be
asked to identify all of their opinions and bases of those opinions. But these experts may attempt
to present documents and opinions that go beyond those given at their depositions.
By limiting the experts’ trial testimony to only those opinions given at the depositions,
£11.w
Defendants will have a reasonable notice of the specific areas of investigation by the experts, the
opinions they reached, and the reasons supporting those opinions. Without such a restriction,
Defendants
\OOO\IO\
will not be able to properly prepare for cross—examination and rebuttal of the experts’
testimony, contrary to the goal of C. C.P. Section 2034.010, et seq.
1o B. Conclusion / General Kennemur Motion
11 Ms. Hulme respectfully requests that the Court grant this motion in limine and enter an
12
order, in regard to Plaintiff s experts properly deposed under Kennemur, that:
13
(1) Plaintiff s experts only be permitted to testify as to those opinions and bases of
14
those opinions testified to in their depositions;
15
(2) Excludes testimony based upon materials not reviewed or provided at the
16
17 depositions of those experts; and
18 (3) Prohibits Plaintiff from mentioning, interrogating upon, or in any other manner
19 of their experts other than those stated at the
conveying to the jury any opinions
20
depositions of those experts; and that the Court further order counsel to instruct
21
their witnesses as to the same.
22
)
Respectfully submitted,
23
24
Dated: 7 \ko MULLIGAN, BANHAM & FINDLEY
25
26
‘B/riaqK. Findley
27
Attorneys for Defendant, Jennifer Hulme
28
_ 4 _
JENNIFER HULME’S MOTION IN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO
THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION
GRANTED DENIED MODIFIED
~ ~
~
~
\OOO\10\
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
.5-
JENNIFER HULME’S MOTION IN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO
THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Darrel E. Parker, Executive Officer 7/6/2016 4:40:04 PM By: Terri Chavez, Deputy (3) Prohibits Plaintiff from mentioning, interrogating upon, or in any other manner conveying to the jury any opinions of their experts other than those stated at the #UJN depositions of those experts; and that the Court further order counsel to instruct their witnesses as to the same. Ms. Hulme makes this motion under Code of Civil Procedure Section 2034.010, et seq. and California case law set forth below. The grounds for this motion are that allowing experts to offer \OOO\]O\£II opinions or documents other than those stated or presented at their deposition thwarts the purposes served by expert depositions and would unfairly prejudice Defendants. 10 Ms. Hulrne bases this motion on this notice of motion, the supporting memorandum, the 11 pleadings and papers on file in this action, and upon such evidence and argument as may be 12 presented before or at the hearing of this matter. 13 POINTS AND AUTHORITIES 14 A. Expert testimony at the time of trial is limited to opinions and bases given at the time 15 of deposition if the opposing party has no notice or expectation that the expert will offer the new testimony. 16 17 in Code of Civil Procedure Section The purpose of expert—witness discovery, as embodied 18 of what an expert will testify to at 2034.010, et seq., is to give fair notice to the opposing party 19 whether to take the expert’s deposition, to trial. Expert discovery allows the parties to determine 20 and to select an expefi who can respond with a explore the relevant subject area at the deposition, 21 competing opinion on that subject area.1 22 is to allow the parties to properly One of the goals of CCP Section 2034.010, et seq. 23 prepare for trial and “allowing new and unexpected testimony for the first time at trial is contrary 24 2 of this expert witnesses must be limited to to that purpose.” To permit accomplishment goal, 25 26 27 4‘h 146-147. Roy (1999) 20 Cal. 1 See Bonds v. 140, Jones v. Moore (2000) 80 Ca]. App. 4"1 557, 566. 2 28 . 2 _ JENNIFER HULME’S MOTION IN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION those opinions offered at their deposition, and not permitted to expand on them nor offer different conclusions. In Jones v. Moore, the Court of Appeal upheld the trial court’s decision to exclude the trial testimony of the plaintiff 5 expert where the expert had, at his deposition, testified that those were the only opinions he intended to offer, but if he formed any other opinions before trial, he would notify defense counsel. The expert never notified defense counsel of any other opinions he reached after his deposition, but nevertheless tried to introduce such testimony at the time of trial. \OOO\]O‘\ According to the court, “when an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly 10 unfair and prejudicial to permit the expert to offer additional opinions at trial.”3 11 In Kennemur v. State of California, 4 the Court of Appeal ruled that “a party must disclose 12 either in his witness list or at his expert’s deposition, if the expert is asked, the substance of the 13 facts and opinions which the expert will testify to at trial. Only by such a disclosure will the 14 opposing party have reasonable notice of the specific areas of investigation by the expert, the 15 opinions he has reached and the reasons supporting the opinions, to the end the opposing party can 16 prepare for cross-examination and rebuttal of the expert’s testimony.” The court explained: 17 The Legislature has singled out the pretrial discovery of expert opinions for special 18 treatment. When appropriate demand is made for exchange of expert witness lists, the party is required to disclose not only the name, address and qualifications of the witness, 19 but the general substance of the testimony the witness is expected to give at trial (Predecessor Section 2037.3.) In our View, this means the partv must disclose either in 20 his witness list or at his expert’s deposition, if the expert is asked, the substance of the facts and the opinions which the expert will testifv to at trial. Only by such a disclosure 21 will the opposing party have reasonable notice of the specific areas of investigation by the 22 expert, the opinions he has reached and the reasons supporting the opinions, to the end the opposing party can prepare for cross--examination and rebuttal of the expert s testimony. 23 24 25 26 27 3 4”1 at p. Jones v. Moore, supra, 80 Cal.App. 565 (emphasis added). 4 (1982) 133 Ca1.App. 3d 907 5 28 Id., atp. 919. _3 _ JENNIFER HULME’S MOTION fN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION N0 expert depositions have taken place in this case yet. Experts that are deposed will be asked to identify all of their opinions and bases of those opinions. But these experts may attempt to present documents and opinions that go beyond those given at their depositions. By limiting the experts’ trial testimony to only those opinions given at the depositions, £11.w Defendants will have a reasonable notice of the specific areas of investigation by the experts, the opinions they reached, and the reasons supporting those opinions. Without such a restriction, Defendants \OOO\IO\ will not be able to properly prepare for cross—examination and rebuttal of the experts’ testimony, contrary to the goal of C. C.P. Section 2034.010, et seq. 1o B. Conclusion / General Kennemur Motion 11 Ms. Hulme respectfully requests that the Court grant this motion in limine and enter an 12 order, in regard to Plaintiff s experts properly deposed under Kennemur, that: 13 (1) Plaintiff s experts only be permitted to testify as to those opinions and bases of 14 those opinions testified to in their depositions; 15 (2) Excludes testimony based upon materials not reviewed or provided at the 16 17 depositions of those experts; and 18 (3) Prohibits Plaintiff from mentioning, interrogating upon, or in any other manner 19 of their experts other than those stated at the conveying to the jury any opinions 20 depositions of those experts; and that the Court further order counsel to instruct 21 their witnesses as to the same. 22 ) Respectfully submitted, 23 24 Dated: 7 \ko MULLIGAN, BANHAM & FINDLEY 25 26 ‘B/riaqK. Findley 27 Attorneys for Defendant, Jennifer Hulme 28 _ 4 _ JENNIFER HULME’S MOTION IN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION GRANTED DENIED MODIFIED ~ ~ ~ ~ \OOO\10\ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 .5- JENNIFER HULME’S MOTION IN LIMINE TO LIMIT EXPERT TESTIMONY OF PLAINTIFF’S EXPERTS TO THOSE OPINIONS AND BASES THEREFORE TESTIFIED TO AT DEPOSITION