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MARTIN D. HOLLY, ESQ. (SBN: 201421)
1 ERIKA N. BRENNER, ESQ. (SBN: 267356)
Telephone/Facsimile: (213) 419-5063
2 Email: mholly@rlattorneys.com
RESNICK & LOUIS, P.C.
3 515 South Flower Street, 18th Floor
4 Los Angeles, CA 90071
5 Attorneys for Defendants Target Corporation and
Thiago Bettencourt
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7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
10 FOR THE COUNTY OF SONOMA
11
ALISON R. O’KEEFE and JONATHAN CASE NO. SCV-265337
12 C. O’KEEFE, [Assigned to the Hon. Oscar Pardo, Dept. 19]
13
Plaintiffs, DEFENDANTS’ BENCH MEMORANDUM
14 REGARDING ADMISSIBILITY OF EXPERT
vs. TESTIMONY SHOWING LACK OF
15 CAUSATION (DR. KENNETH SOLOMON);
16 TARGET CORPORATION, TIAGO COMPENDIUM OF CITED CASES.
BETTERNCOURT, and DOES 2 through
17 10, inclusive, Date: June 30, 2023
Time: 8:30 a.m.
18 Defendants. Dept.: 19
19 Complaint Filed: October 7, 2019
20 Trial Date: May 4, 2023
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DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING
LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES
1 TO THE COURT AND ALL PARTIES:
2 PLEASE TAKE NOTICE that Defendants TARGET CORPORATION and THIAGO
3 BETTENCOURT (hereinafter “Defendant”), respectfully submit this bench memorandum regarding
4 the admissibility of Dr. Kenneth Solomon’s expert testimony regarding lack of causation between the
5 incident and the plaintiff’s brachial plexus injury.
6 In no way does Dr. Solomon intend to make, challenge or present any medical diagnoses
7 in this matter. His testimony is wholly reliant upon the medical diagnoses made by the medical
8 doctors in this case. Dr. Solomon’s testimony would be directed only to the physical and kinetic forces
9 at work in the incident described by plaintiff, as compared and contrasted with the physical and kinetic
10 forces needed to cause a brachial plexus injury such as the one described by the medical doctors in this
11 matter, coupled with Dr. Solomon’s expert conclusion regarding the mismatch between the two. Dr.
12 Solomon’s testimony will establish a lack of cause-in-fact between the incident and the injury
13 diagnosed by the doctors. His testimony is essential to Defendants’ case, and his opinions cannot be
14 rendered by any medical doctor without biomechanical engineering expertise. Just as Dr. Solomon is
15 not qualified to diagnose the injury suffered by Plaintiff, a medical doctor is not qualified to testify
16 regarding the physical forces and velocities necessary to cause such an injury. This is where the use
17 of biomechanical expert testimony in both civil and criminal actions is routinely found, and its use has
18 been approved in numerous published and unpublished opinions dating back decades (many of which
19 are cited below).
20 There simply is no competent basis to exclude his expert opinions in this regard, and
21 Defendant’s case would be hobbled by the erroneous exclusion of Dr. Solomon’s testimony. Any
22 criticism Plaintiff has of Dr. Solomon’s opinions can easily be directed to the weight of his testimony,
23 not its admissibility. Plaintiff has had ample opportunity to depose Dr. Solomon and will have ample
24 opportunity to cross-examine him after his direct testimony concludes.
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DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING
LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES
1 FACTUAL BACKGROUND
2 As established at the 402 hearing in this matter, Dr. Kenneth Solomon is a highly qualified
3 expert in biomechanics. Dr. Solomon has literally written a book on biomechanical injuries. He holds
4 a PhD from UCLA’s Department of Energy and Kinetics, is a licensed professional engineer, has taught
5 at both USC and UCLA, and has five decades of relevant experience. Defendants expect that he can
6 and will testify that the incident described by Plaintiff would not have been likely to cause the brachial
7 plexus injury the medical doctors in this matter have diagnosed. By reviewing the witness testimony,
8 the pertinent photographs, and the pertinent medical records, and by applying Dr. Solomon’s extensive
9 experience with the mechanics of injury, Dr. Solomon can state, in his expert opinion, that there is not
10 a causative link between the event at issue and the injury suffered.
11 DR. SOLOMON’S PROFERRED EXPERT TESTIMONY IS ORDINARY, NON-
12 CONTROVERSIAL LACK OF CAUSATION EVIDENCE, NOT MEDICAL OPINION
13 TESTIMONY.
14 Dr. Solomon’s testimony will establish a lack of cause-in-fact between the incident and the
15 injury diagnosed by the doctors. His testimony is essential to Defendants’ case, his opinions can only
16 be rendered by an expert in biomechanics and physical forces, and his opinions cannot be rendered by
17 any medical doctor in this case. At the intersection between event and injury is precisely where
18 biomechanical expert testimony in both civil and criminal actions is routinely utilized, and its use has
19 been approved in numerous published and unpublished opinions dating back decades.
20 For example, in Pineda v. Los Angeles Turf Club (1980) 112 Cal.App.3d 53, a biomechanics
21 expert was permitted to testify, based upon the expert’s review of medical records, witness testimony,
22 and photographic evidence from a horse racing accident, that a fatal injury was caused by the
23 decedent’s head being struck by a horse’s head:
24 Earlier, however, Siegel was asked the following question: "Sir, were you able to
determine from the information supplied to you through any officer or through Santa
25 Anita and further through your own investigatory processes how the plaintiff was
injured?" He testified that in his opinion Pineda was injured when "[he] was struck by
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the horse's head, his head against the horse's head or the horse's head against his,
27 rather." He arrived at his conclusion in the following manner: "The first step, of
course, was to review the witness statements to try and get some feeling. This is that
28 closing down, if you will, process to try and understand from the witnesses what they
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DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING
LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES
saw or what they thought they saw, to look at the medical records to determine the
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area of impact, where were the contacts that occurred.
2 "And then with that information to go to the film and determine from the film on a
frame by frame basis, not only if we could determine numerical information or
3
velocities, this rate of change distance over time, but also to determine what is called
4 kinematics, that is, the motion that takes place each frame.
5 "And based upon the film and kinematic and dynamic analysis of the film, the
medical records, and also the witness statements, particularly two witness statements
6 or two witnesses, Miss Fitzpatrick and Mr. Gonzales, I found that their description of
the event very, very closely related to what occurred in the film."
7
Siegel testified that he could not see the actual impact of the horse's head with Pineda's
8 head in the film. The film did show, however, that "the two objects, the heads, are on a
collision course, . . ." In order to reach his conclusion that the horse's head hit Pineda's
9 head he did refer to the witnesses' statements "[as] well as my knowledge of the
10 biomechanics and the force directions taken from Doctor Bucklin's report [the autopsy
report] and Doctor Bucklin's discussion, or my discussion with him."
11 ***
12 We have no doubt that neither witness' views would have changed had he been asked
to exclude the pretrial statements from consideration. The important data were clearly
13
the medical records and the film. Yet even if either expert had stated that he needed
14 the statements, respondents' counsel could easily have filled the gap with a
hypothetical question incorporating the testimony of the five witnesses.
15
In sum: although the presentation of the expert testimony lacked some traditional
16 polish, if there was error it was utterly harmless.
17 (Pineda v. Los Angeles Turf Club (1980) 112 Cal.App.3d 53, 59-60, 62).
18 A biomechanics expert also may testify regarding the lack of causation. For example, in
19 DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, a biomechanics expert was properly permitted to
20 testify that he would not have expected plaintiff to suffer any injury, including specifically any knee
21 or shoulder injury, based upon the forces at work in the subject car accident:
22 Dr. Burkhard properly disclosed “‘the general substance’” of his expected testimony,
sufficiently so the parties could adequately prepare for trial [citation omitted].
23 Specifically, Dr. Burkhard testified at his deposition that one would not expect
24 plaintiff to have suffered any injury. In response to a question by plaintiff's counsel as
to whether in his opinion plaintiff “sustain[ed] any injury in this accident” (italics
25 added), Dr. Burkhard explained, in pertinent part, “Not having read his depo or the
medical records, the only way I can answer is this: if [plaintiff] is shown to be robustly
26 healthy, relatively active prior to this accident, this accident poses no more threat [than
27 doing everyday types of things around the house], and I would not have expected
injury to him.”
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DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING
LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES
Thus, the general substance of Dr. Burkhard's opinion at the deposition was that one
1
would not expect plaintiff to have suffered “any” injury. Therefore, his
2 subsequent testimony at trial regarding the lack of any expectation of specific knee or
shoulder injury resulted in no unfair surprise for plaintiff. Dr. Burkhard simply did not
3 exceed the general scope of his deposition testimony when he opined at trial that one
would not expect the accident to result in the specific knee and shoulder injuries
4
complained of because the “forces are very comparable” to what would be
5 experienced during normal “routine activities.” Accordingly, the trial court did not
abuse its broad discretion [citation omitted] in permitting Dr. Burkhard to so testify at
6 trial.
7
(DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 166).
8
Plaintiffs have used biomechanical expert testimony regarding causation to defeat summary
9
judgment for decades. For example, in Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th
10
703, testimony from a biomechanics expert was held to create a triable question of fact as to
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causation sufficient to defeat a defendant’s summary judgment motion, based upon the expert’s
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opinion that the plaintiff’s injury was caused by a baseball hitting him in the head:
13 We first note that Dr. Kent attached his curriculum vitae to his declaration. It
14 establishes that Dr. Kent has a Ph.D. in physical education, with a specialty in clinical
kinesiology. He is a diplomat of the American Board of Forensic Medicine and of the
15 American Board of Forensic Examiners. He describes his work experience from 1983
to present as follows: "Consulting services in Forensic and Occupational
16 Kinesiology, specializing in the analysis of biomechanics of trauma, human
17 performance analysis, rehabilitation medicine and biomechanical accident
reconstruction." (Italics added.) We now quote from the pertinent portions of his
18 declaration:
19 "4. I have reviewed medical records regarding Mr. Sanchez's anatomic injuries as a
result of this subject event. I have reviewed archival videotape footage of Mr. Sanchez
20 pitching prior to the date of injury. I have reviewed the deposition transcripts of Mr.
Sanchez, [***25] Justin Kiersby and Michael Gillespie. I have also reviewed and
21
relied upon literature regarding skull fracture and traumatic brain injury
22 biomechanics, National Collegiate Athletic Association (NCAA) Baseball rules and
safety standards, and the Consumer Products Safety Commission (CPSC) and
23 research[] conducted under the auspices of Hillerich & Bradsby (H&B). Based upon
my review of all of these materials, my training and experience, I have also completed
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quantitative analysis regarding the velocity necessary to cause Mr. Sanchez's injury
25 pattern. I then compared the resulting ball flight time to the safety criteria established
by the NCAA, CPSC and H&B sponsored literature. Based upon this analytic process,
26 I have formed the opinions to follow.
27 ***
28 "8. Based upon my analysis of this matter, it is more probable than not that Mr.
Sanchez's head injury resulted from the use of a baseball bat which possessed
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DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING
LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES
mechanical properties allowing a batted ball to attain a flight velocity in excess of a
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velocity that would allow for a reasonable reaction time by a pitcher in a post-delivery
2 posture in a game situation." (Italics added.)
***
3
We conclude the evidence presented by appellant is sufficient to create a triable issue
4 of fact regarding causation. [citations omitted].
5
(Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 717-719).
6
In many cases, both sides use biomechanical expert testimony regarding causation, as its use is
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not controversial and establishes a baseline for other expert testimony. For example, in Romine v.
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Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, both parties used biomechanical experts to opine
9
regarding the manner in which the plaintiff’s injury occurred:
10 Dr. Joseph Burton, plaintiff's expert on biomechanics (effect of forces on organic
11 bodies), kinematics (how objects behave when a force acts on them), and forensic
pathology in car accidents, testified that the primary force on plaintiff's head that
12 caused her injuries was downward. As plaintiff had no significant head injuries, in
order to injure her neck as she did, something had to stop her head without seriously
13 injuring it. Dr. Burton stated that she would have suffered the neck injuries if her seat
14 back reclined, her torso moved backward, and the seat back behind her stopped her
head. He further opined that plaintiff would not have received the same types of
15 injuries if her seat had remained upright.
16 ***
Catherine Corrigan, defendants' biomechanical engineering expert, testified that
17
plaintiff sustained the injuries to her neck during the rear-end impact by the Altima.
18
(Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 997-998, 1004, 1015).
19
Finally, there is no exception to the above rules for determining causation of brachial plexus
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injuries, even for injuries that occur during the birthing process. For example, in Williams v. United
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States (E.D. Mich 2019) 2019 U.S. Dist. LEXIS 236703, the Court denied a motion to exclude a PhD’s
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expert opinion as to the causation of a baby’s brachial plexus injury:
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Williams also notes that Dr. Grimm is not a medical doctor, and her opinions are based
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on biomechanics, not clinical experience. [citation omitted]. However, application of
25 forces from labor and delivery is a biomechanical process, and biomedical engineers
study and review the birthing process. [citation omitted]. Williams seems to admit as
26 much, as she cites in her brief to a chapter in Biomechanics of the Female Public Floor.
[citation omitted]. Therefore, although Dr. Grimm's studies may only have been peer
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reviewed in connection with OBGYN journals, her approaches are accepted within the
28 scientific community, which include both biomechanical engineers and medical
professionals.
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DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING
LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES
1
(Williams v. United States (E.D. Mich. 2019) 2019 U.S. Dist. LEXIS 236703, p. 12-18); see also, Silong
2
v. United States (E.D. Cal. 2007) 2007 U.S. Dist. LEXIS 67498, p. 8-11 (denying motion to exclude
3
Dr. Grimm’s testimony regarding causation of a baby’s brachial plexus injury, noting that “Plaintiffs'
4
arguments affect the weight of Dr. Grimm's opinions, not admissibility. Plaintiffs may fully examine
5
the issues raised in this motion on cross-examination or by the presentation of competing evidence.”)
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CONCLUSION
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9 For all of the foregoing reasons, Dr. Kenneth Solomon’s expert testimony regarding lack of
10 causation between the incident and the plaintiff’s injuries is admissible in this matter and any criticism
11 should be directed to the weight of his testimony, not its admissibility. Plaintiff has had ample
12 opportunity to depose Dr. Solomon and will have ample opportunity to cross-examine him after his
13 direct testimony concludes.
14
Respectfully submitted,
15
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DATED: June 30, 2023 RESNICK & LOUIS, P.C.
17
18
By: ________________________________________
19 Martin D. Holly, Esq.
Erika N. Brenner, Esq.
20 Attorneys for Defendant
21 TARGET CORPORATION
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DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING
LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES
Cited
As of: June 28, 2023 4:19 AM Z
DePalma v. Rodriguez
Court of Appeal of California, Second Appellate District, Division Two
May 4, 2007, Filed
B190062
Reporter
151 Cal. App. 4th 159 *; 59 Cal. Rptr. 3d 479 **; 2007 Cal. App. LEXIS 839 ***; 2007 Cal. Daily Op. Service 5904
trial. Specifically, the expert testified at his deposition
WILLIAM DEPALMA, Plaintiff and Appellant, v. SONIA
that one would not have expected plaintiff to have
RODRIGUEZ, Defendant and Respondent.
suffered any injury. The expert's subsequent trial
testimony regarding the lack of any expectation of
Subsequent History: [***1] The Publication Status of
specific knee or shoulder injury resulted in no unfair
this Document has been Changed by the Court from
surprise for plaintiff. Even assuming arguendo the
Unpublished to Published May 24, 2007.
testimony complained of was error, it was not so
Prior History: Superior Court of Los Angeles County, prejudicial as to have resulted in a miscarriage of justice
No. VC042431, Daniel S. Pratt, Judge. warranting a new trial. The special verdict finding that
defendant's negligence was not a substantial factor
Disposition: Affirmed. causing harm was supported by the testimony of
plaintiff's doctor.
Core Terms Outcome
The judgment was affirmed.
deposition, left shoulder, left knee, deposition testimony,
injuries, knee, forces, vehicle accident, biomechanic,
declaration, experienced, everyday, shoulder LexisNexis® Headnotes
Case Summary
Procedural Posture
Evidence > Admissibility > Procedural
Plaintiff sued defendant in the Los Angeles County
Matters > Rulings on Evidence
Superior Court, California, for personal injuries allegedly
arising from a motor vehicle accident. The jury's special
HN1[ ] Procedural Matters, Rulings on Evidence
verdict found that defendant was negligent, but that her
negligence was not a substantial factor in causing any
The trial court has broad discretion in ruling on the
harm to plaintiff. Plaintiff appealed.
admissibility of evidence.
Overview
Plaintiff argued that the trial court erred in allowing
defendant's biomechanic expert to testify at trial to Civil Procedure > ... > Discovery > Methods of
opinions beyond those he had testified to at his Discovery > Expert Witness Discovery
deposition. At trial, the defense expert testified that the
nature of the low speed accident was such that one Evidence > ... > Testimony > Expert
would not expect a person of normal health to have Witnesses > General Overview
suffered any injury from the accident. The instant court
concluded that the expert did not exceed the scope of HN2[ ] Methods of Discovery, Expert Witness
his deposition testimony. The expert properly disclosed Discovery
the general substance of his expected testimony
sufficiently so the parties could adequately prepare for Although a party is required to disclose the substance of
Brooks Gresham
Page 2 of 6
151 Cal. App. 4th 159, *159; 59 Cal. Rptr. 3d 479, **479; 2007 Cal. App. LEXIS 839, ***1
the facts and the opinions to which the expert will testify, CA(2)[ ] (2)
this does not require disclosure of specific facts and
opinions. Witnesses § 10—Experts—Disclosure—Substance of
Facts and Opinions.
Headnotes/Summary Although a party is required to disclose the substance of
the [*160] facts and the opinions to which the expert
will testify, this does not require disclosure of specific
Summary
facts and opinions.
CALIFORNIA OFFICIAL REPORTS SUMMARY
Plaintiff sued defendant for personal injuries allegedly CA(3)[ ] (3)
arising from a motor vehicle accident. At trial,
Witnesses § 10—Experts—Opinion at Deposition—
defendant’s biomechanic expert opined that the nature
General Substance—Subsequent Trial Testimony—
of the low-speed accident was such that one would not
Unfair Surprise.
expect a person of normal health to have suffered any
injury from the accident. The jury's special verdict found Where the general substance of a defense expert’s
that defendant was negligent, but that defendant’s opinion at a deposition was that one would not expect
negligence was not a substantial factor in causing any the plaintiff to have suffered any injury arising from a
harm to plaintiff. (Superior Court of Los Angeles County, low-speed automobile accident, the expert's subsequent
No. VC042431, Daniel S. Pratt, Judge.) testimony at trial regarding the lack of any expectation
of specific knee or shoulder injury resulted in no unfair
The Court of Appeal affirmed the judgment. The court
surprise for the plaintiff, and the expert did not exceed
concluded that the defense expert did not exceed the
the general scope of his deposition testimony.
scope of his deposition testimony. The expert properly
disclosed the general substance of his expected [Cal. Forms of Pleading and Practice (2007) ch. 198,
testimony sufficiently so the parties could adequately Discovery: Exchange of Expert Witness Information, §
prepare for trial. Specifically, the expert testified at his 198.19; 1 Kiesel et al., Matthew Bender Practice Guide:
deposition that one would not have expected plaintiff to Cal. Civil Discovery (2007) § 13.14; 2 Witkin, Cal.
have suffered any injury. The expert's subsequent Evidence (4th ed. 2000) Discovery, § 198.]
testimony at trial regarding the lack of any expectation
of specific knee or shoulder injury resulted in no unfair Counsel: O'Neill & Marchiondo and Philip L.
surprise for plaintiff. Even assuming arguendo the Marchiondo for Plaintiff and Appellant.
testimony complained of was error, it was not so
prejudicial as to have resulted in a miscarriage of justice Michael Maguire & Associates, Paul Kevin Wood and
warranting a new trial. The special verdict finding that Kevin R. Jolly for Defendant and Respondent.
defendant’s negligence was not a substantial factor
causing harm was supported by the testimony of Judges: Boren, P. J., with Doi Todd and Chavez, JJ.,
plaintiff’s own physician. (Opinion by Boren, P. J., with concurring.
Doi Todd and Chavez, JJ., concurring.)
Opinion by: Boren
Headnotes
Opinion
CA(1)[ ] (1)
[**479] BOREN, P. J.—Plaintiff William DePalma sued
Evidence § 21.2—Admissibility—Trial Court’s
defendant Sonia Rodriguez for personal injuries
Discretion—.
allegedly arising from a motor vehicle accident. The
jury's special verdict found that defendant was
The trial court has broad discretion in ruling on the
negligent, but that her negligence was not a substantial
admissibility of evidence.
factor in causing any harm to plaintiff. Plaintiff contends
he is entitled to a new trial because the court abused its
discretion in allowing defendant's biomechanic expert to
Brooks Gresham
Page 3 of 6
151 Cal. App. 4th 159, *160; 59 Cal. Rptr. 3d 479, **479; 2007 Cal. App. LEXIS 839, ***1
testify at trial to opinions beyond those he had testified compartment had collapsed and there was no articular
to at his deposition. cartilage left. There were also other changes “of a
degenerative nature” in other areas of his knee. Plaintiff
The general substance of the expert witness's opinion was a surgical candidate for a left knee replacement
testimony at his deposition was that the nature of the and for shoulder surgery. [*162] According to Dr.
low-speed accident was such that one would not expect Swanson, the vehicle accident in question resulted in
a person of normal health to have suffered “any” injury only an “incremental” increase [***4] in plaintiff's
[*161] from the accident [***2] in question. Thus, we symptoms and loss of function, and it “wasn't the sole
find that the expert did not exceed the scope of his cause of the underlying process which is degenerative
deposition testimony when he opined at trial that one joint disease.” Dr. Swanson deemed plaintiff not able to
would not expect the accident to result in the specific return to his previous occupation working on elevators.
knee and shoulder injuries complained [**480] of
because the “forces are very comparable” to what would Defendant presented testimony at trial from Dr. Peter
be experienced during normal “routine activities,” and Burkhard, a biomechanic expert and accident
there was also “no expectation of knee contact.” In any reconstructionist, who was previously employed by
event, it is not reasonably probable that a more General Motors Research Laboratories in the crash
favorable result would have ensued; the alleged error injury group at their biomedical science department and
was not prejudicial. by TRW in the area of structural dynamics. Dr. Burkhard
analyzed the vehicle accident at issue under two
scenarios: first, where defendant's vehicle struck Avina's
FACTS vehicle first and pushed Avina's vehicle into plaintiff's
vehicle; and second, where Avina's vehicle struck
On January 6, 2003, plaintiff's vehicle was the front car plaintiff's vehicle, and then defendant's vehicle struck
in a three-car, chain-reaction, rear-end collision. The Avina's, pushing it into plaintiff's vehicle a second time.
middle car was driven by Teresa Avina (who settled with
defendant prior to trial), and the last car was driven by According to Dr. Burkhard, even under the second
defendant. scenario with a double impact and greater force, based
upon the damage suffered by the vehicles the maximum
The factual disputes at trial focused on the severity of impact sustained by plaintiff's stopped vehicle would
the vehicle impacts and whether Avina's vehicle collided have been a three- to five-mile-per-hour crash impact. A
with plaintiff's before or after defendant's vehicle collided three-mile-per-hour impact is similar to a car
with Avina's. Defendant testified that her Toyota came stopping [***5] in a parking lot where the tires
into contact with the rear of Avina's car only once. accidentally hit a raised parking curb. A five-mile-per-
However, Avina, whose deposition testimony was read hour impact is similar to amusement park bumper cars
into the record, indicated that her vehicle was hit from hitting each other. Dr. Burkhard further testified that the
the rear two times by defendant's [***3] vehicle. Avina damage to the front of Avina's vehicle appeared to be
also explained that “[n]othing happened to [her] vehicle” [**481] an “under ride,” meaning that Avina's bumper
except “a little scratch” on the back of the rear portion. slid underneath plaintiff's bumper because Avina was
braking at the time.
Plaintiff presented medical testimony regarding injury to
his left knee and left shoulder. Dr. Jacob Tauber, an Counsel for defendant then asked Dr. Burkhard if,
orthopedic surgeon, conducted an independent medical based on his professional experience and the
examination of plaintiff and reviewed plaintiff's medical information available to him, he believed “there would
records. Dr. Tauber indicated that plaintiff had be any reasonable expectation [of injury] to [plaintiff's]
degenerative arthritis in his left knee and impingement left knee.” Counsel for plaintiff objected on the ground
syndrome with acromioclavicular arthritis in his left that such a question called for an answer “that's beyond
shoulder. Plaintiff was a candidate for left knee the opinion expressed in his deposition.” The court
replacement surgery and for decompression surgery on overruled the objection, and Dr. Burkhard replied, “With
his left shoulder. regards to the knee, I find really no potential for injury in
this particular case.” He explained that there was “no
Dr. Gerald Swanson, plaintiff's treating physician, also
expectation of knee contact” because the body would be
testified that plaintiff had left shoulder impingement
moving away from the dashboard, “and then on rebound
syndrome, meaning a problem with the rotator cuff
there's a very minimal movement forward, particularly of
mechanism. Regarding plaintiff's left knee, the medial
Brooks Gresham
Page 4 of 6
151 Cal. App. 4th 159, *162; 59 Cal. Rptr. 3d 479, **481; 2007 Cal. App. LEXIS 839, ***5
the pelvis or the lower extremities. … The forces are [***7] In an effort to undermine plaintiff's credibility,
very comparable to what you would experience counsel for defendant established the fact of several
just [***6] in everyday life. That's the level of force prior injuries suffered by plaintiff. In November of 2002,
[plaintiff] would have experienced [*163] here.” Again three months prior to the vehicle accident at issue,
over the objection of plaintiff's counsel, the court plaintiff explained that when he picked up a large sheet
permitted Dr. Burkhard to testify similarly that as to of plywood in his garage “my left rib popped, and I felt a
plaintiff's left shoulder, “The same answer would also be twinge in my left shoulder.” Plaintiff also admitted that in
true. You are looking at forces that are very comparable 1995 he fell down a paved hill, injuring his neck, back
to that experienced in performing everyday routine [**482] and shoulder, resulting in medical treatment
activities or events.” and a workers' compensation claim. In the mid-1980's,
plaintiff had another workers' compensation claim after a
Thereafter, counsel for plaintiff cross-examined Dr. compactor fell on him, resulting in injury to his back.
Burkhard regarding alleged inconsistencies between his Counsel for defendant [*164] also established that
trial and deposition testimony as to whether or not the despite the prior injuries noted above, on health care
accident could have caused certain injuries to plaintiff. provider forms plaintiff indicated that he had no prior
Dr. Burkhard explained, “What I think I said in my injuries.
deposition is that the forces in this particular case are
commensurate or are similar to the forces experienced Regarding the extent of the damage to the vehicles
during the performance or experience of everyday life, involved in the accident, Avina testified during her
and then the obvious implication would be that, if you deposition that her car suffered “just a little scratch” on
don't expect this person to be injured doing everyday the back rear portion. Estimates for repair of plaintiff's
things, then you wouldn't expect injury here.” 1 vehicle varied from approximately $1,300 to $3,100; the
estimate for the repair of defendant's vehicle was
approximately $4,200.
1 Dr. Burkhard's deposition was, in pertinent part, as follows:
“If [plaintiff is] able to do everyday type[s] of things relatively
pain-free, then I would expect this accident to have posed no DISCUSSION [***8]
more threat than those everyday types of things. … If
everyday types of activities cause him pain, then I would see Plaintiff contends that the trial court abused its
this accident causing him some pain. … [¶] … If he's robustly discretion by allowing defendant's biomechanic expert,
healthy [meaning he] is able to do everyday types of things Dr. Burkhard, to offer opinions at trial beyond the scope
and is relatively active and doesn't have pain associated with of the opinions he offered in his deposition testimony.
that, this accident poses no more threat than those types of Plaintiff asserts that in reliance on Dr. Burkhard's
situation[s].” deposition testimony, and particularly his lack of any
opinion regarding plaintiff's left knee and left shoulder
In response to a question by plaintiff's counsel as to whether in
injuries (the most significant injuries alleged), plaintiff
his opinion plaintiff “sustain[ed] any injury in this accident,”
found it unnecessary to have his own biomechanic
(italics added) Dr. Burkhard explained, “Not having read his
depo or the medical records, the only way I can answer is this: expert testify and thus elected to undesignate him as an
if [plaintiff] is shown to be robustly healthy, relatively active expert witness at trial. According to plaintiff, over his
prior to this accident, this accident poses no more threat [than objections at trial Dr. Burkhard was permitted to express
doing everyday types of things around the house], and I would his previously concealed opinions regarding plaintiff's
not have expected injury to him. [¶] If you tell me or the facts left knee and left shoulder, and plaintiff was
tell me that he had some … problems with his back or neck “sandbagged” into not calling his own biomechanic
prior to this[,] doing everyday types of things around the expert at trial.
house, [those normal] activities caused him pain, could this
accident have caused him some additional pain? The answer CA(1)[ ] (1) However, we find no abuse of HN1[ ] the
is yes.” trial court's “ ‘broad discretion in ruling on the
During his deposition, Dr. Burkhard also indicated he was admissibility of evidence.’ ” (Tudor Ranches, Inc. v.
unfamiliar with plaintiff's complaints of physical injuries, other State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422,
than complaints of neck and back pain noted in the police 1431–1432 [77 Cal. Rptr. 2d 574].) And the cases relied
report, and he eschewed any discussion of causation upon by plaintiff, Jones v. Moore (2000) 80 Cal.App.4th
regarding pain in the knees and shoulders. At the conclusion 557 [95 Cal. Rptr. 2d 216] (Jones), and Bonds v. Roy
of his deposition, Dr. Burkhard acknowledged that he had no (1999) 20 Cal.4th 140 [83 Cal. Rptr. 2d 289, 973 P.2d
more opinions to state other than those already stated.
Brooks Gresham
Page 5 of 6
151 Cal. App. 4th 159, *164; 59 Cal. Rptr. 3d 479, **482; 2007 Cal. App. LEXIS 839, ***8
66] [***9] (Bonds), are factually distinguishable. representation that the opinions expressed during an
expert deposition are the only ones that need be met at
It is well settled that an expert may be precluded from trial.” (Id. at pp. 565–566.)
testifying at trial on a subject that was not described in
his expert witness declaration. (Bonds, supra, 20 CA(2)[ ] (2) However, the instant case is quite different
Cal.4th at p. 145.) The Supreme Court in Bonds held from the situation in Jones, where testimony excluded
that “the exclusion sanction of [Code of Civil Procedure by the trial court involved an entirely new area of
section 2034,] subdivision (j) applies when a party testimony not previously disclosed. Here, Dr. Burkhard's
unreasonably fails to submit an expert witness trial testimony constituted merely an expanded
declaration that fully complies with the content description and interpretation of the conclusions stated
requirements of [Code of Civil Procedure section 2034,] in his deposition testimony. HN2[ ] Although a party is
subdivision (f)(2), including the requirement that the required to “ ‘disclose the substance of the facts and the
declaration contain ‘[a] brief narrative statement of the opinions to which the expert will testify,’ ” this “does not
general substance of [*165] the testimony that the require disclosure of specific facts and opinions.”
expert is expected to give.’ ” 2 (Bonds, at pp. 148–149.) (Williams v. Volkswagenwerk Aktiengesellschaft (1986)
This ensures that the opposing party has an opportunity 180 Cal. App. 3d 1244, 1257, 1258 [226 Cal. Rptr.
to gather sufficient evidence for cross-examination and 306].)
rebuttal. (Id. at pp. 146–147.) The decision in Bonds, [*166]
however, has no direct bearing here because there is no
issue concerning the scope of the declaration by an Dr. Burkhard properly disclosed “ ‘the general
expert witness. Rather, the issue in the present case substance’ ” of his expected testimony, sufficiently so
concerns the expert's deposition. the parties could adequately prepare for trial. (Bonds,
supra, 20 Cal.4th at p. 148.) Specifically, Dr. Burkhard
[***10] Plaintiff's reliance on Jones, supra, 80 testified at his deposition that one would not [***12]
Cal.App.4th 557, although closer factually, is also expect plaintiff to have suffered any injury. In response
unavailing. Jones concerned an expert in a legal to a question by plaintiff's counsel as to whether in his
malpractice action, who testified to the manner in which opinion plaintiff “sustain[ed] any injury in this accident”
an attorney purportedly committed malpractice during a (italics added), Dr. Burkhard explained, in pertinent part,
certain period of time. During his deposition the expert “Not having read his depo or the medical records, the
[**483] testified to specific opinions and affirmatively only way I can answer is this: if [plaintiff] is shown to be
stated that they were the only opinions he would offer at robustly healthy, relatively active prior to this accident,
trial. The expert indicated that if he developed further this accident poses no more threat [than doing everyday
opinions, he would notify counsel. (Id. at p. 565.) The types of things around the house], and I would not have
court thereafter limited the trial testimony of the plaintiff's expected injury to him.”
expert witness, excluding testimony as to other conduct
by the attorney after the timeframe addressed in the CA(3)[ ] (3) Thus, the general substance of Dr.
expert's deposition. (Id. at p. 564.) The defendant in Burkhard's opinion at the deposition was that one would
Jones prevailed and the plaintiff appealed. not expect plaintiff to have suffered “any” injury.
Therefore, his subsequent testimony at trial regarding
The appellate court in Jones noted that the expert the lack of any expectation of specific knee or shoulder
witness's declaration was arguably broad enough to injury resulted in no unfair surprise for plaintiff. Dr.
encompass his trial testimony. Nonetheless, it observed Burkhard simply did not exceed the general scope of his
that under the circumstances “it would be grossly unfair deposition testimony when he opined at trial that one
and prejudicial to permit the expert to offer additional would not expect the accident to result in the specific
opinions at trial.” (Jones, supra, 80 Cal.App.4th at p. knee and shoulder injuries complained of because the
565.) [***11] Thus, it concluded that a party has a “right “forces are very comparable” to what would be
to rely on the other party's expert's express experienced during normal “routine activities.”
Accordingly, [***13] the trial court did not abuse its
broad discretion (see Piscitelli v. Friedenberg (2001) 87
Cal.App.4th 953, 972 [105 Cal. Rptr. 2d 88]) in
2 The Code of Civil Procedure sections discussed in Bonds permitting Dr. Burkhard to so testify at trial.
have been repealed but replaced by substantially similar
provisions with different section numbers. (See Code Civ. Even assuming arguendo the testimony complained of
Proc., §§ 2034.260, subd. (c)(2) & 2034.300, subd. (b).)
Brooks Gresham
Page 6 of 6
151 Cal. App. 4th 159, *166; 59 Cal. Rptr. 3d 479, **483; 2007 Cal. App. LEXIS 839, ***13
was error, it was not so prejudicial as to have resulted in
a miscarriage of justice warranting a new trial. (Evid.
Code, § 353, subd. (b); see Pool v. City of Oakland
(1986) 42 Cal.3d 1051, 1069 [232 Cal. Rptr. 528, 728
P.2d 1163].) The jury's special verdi
Preview
MARTIN D. HOLLY, ESQ. (SBN: 201421) 1 ERIKA N. BRENNER, ESQ. (SBN: 267356) Telephone/Facsimile: (213) 419-5063 2 Email: mholly@rlattorneys.com RESNICK & LOUIS, P.C. 3 515 South Flower Street, 18th Floor 4 Los Angeles, CA 90071 5 Attorneys for Defendants Target Corporation and Thiago Bettencourt 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 FOR THE COUNTY OF SONOMA 11 ALISON R. O’KEEFE and JONATHAN CASE NO. SCV-265337 12 C. O’KEEFE, [Assigned to the Hon. Oscar Pardo, Dept. 19] 13 Plaintiffs, DEFENDANTS’ BENCH MEMORANDUM 14 REGARDING ADMISSIBILITY OF EXPERT vs. TESTIMONY SHOWING LACK OF 15 CAUSATION (DR. KENNETH SOLOMON); 16 TARGET CORPORATION, TIAGO COMPENDIUM OF CITED CASES. BETTERNCOURT, and DOES 2 through 17 10, inclusive, Date: June 30, 2023 Time: 8:30 a.m. 18 Defendants. Dept.: 19 19 Complaint Filed: October 7, 2019 20 Trial Date: May 4, 2023 21 22 23 24 25 26 27 28 1 DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES 1 TO THE COURT AND ALL PARTIES: 2 PLEASE TAKE NOTICE that Defendants TARGET CORPORATION and THIAGO 3 BETTENCOURT (hereinafter “Defendant”), respectfully submit this bench memorandum regarding 4 the admissibility of Dr. Kenneth Solomon’s expert testimony regarding lack of causation between the 5 incident and the plaintiff’s brachial plexus injury. 6 In no way does Dr. Solomon intend to make, challenge or present any medical diagnoses 7 in this matter. His testimony is wholly reliant upon the medical diagnoses made by the medical 8 doctors in this case. Dr. Solomon’s testimony would be directed only to the physical and kinetic forces 9 at work in the incident described by plaintiff, as compared and contrasted with the physical and kinetic 10 forces needed to cause a brachial plexus injury such as the one described by the medical doctors in this 11 matter, coupled with Dr. Solomon’s expert conclusion regarding the mismatch between the two. Dr. 12 Solomon’s testimony will establish a lack of cause-in-fact between the incident and the injury 13 diagnosed by the doctors. His testimony is essential to Defendants’ case, and his opinions cannot be 14 rendered by any medical doctor without biomechanical engineering expertise. Just as Dr. Solomon is 15 not qualified to diagnose the injury suffered by Plaintiff, a medical doctor is not qualified to testify 16 regarding the physical forces and velocities necessary to cause such an injury. This is where the use 17 of biomechanical expert testimony in both civil and criminal actions is routinely found, and its use has 18 been approved in numerous published and unpublished opinions dating back decades (many of which 19 are cited below). 20 There simply is no competent basis to exclude his expert opinions in this regard, and 21 Defendant’s case would be hobbled by the erroneous exclusion of Dr. Solomon’s testimony. Any 22 criticism Plaintiff has of Dr. Solomon’s opinions can easily be directed to the weight of his testimony, 23 not its admissibility. Plaintiff has had ample opportunity to depose Dr. Solomon and will have ample 24 opportunity to cross-examine him after his direct testimony concludes. 25 /// 26 /// 27 /// 28 /// 2 DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES 1 FACTUAL BACKGROUND 2 As established at the 402 hearing in this matter, Dr. Kenneth Solomon is a highly qualified 3 expert in biomechanics. Dr. Solomon has literally written a book on biomechanical injuries. He holds 4 a PhD from UCLA’s Department of Energy and Kinetics, is a licensed professional engineer, has taught 5 at both USC and UCLA, and has five decades of relevant experience. Defendants expect that he can 6 and will testify that the incident described by Plaintiff would not have been likely to cause the brachial 7 plexus injury the medical doctors in this matter have diagnosed. By reviewing the witness testimony, 8 the pertinent photographs, and the pertinent medical records, and by applying Dr. Solomon’s extensive 9 experience with the mechanics of injury, Dr. Solomon can state, in his expert opinion, that there is not 10 a causative link between the event at issue and the injury suffered. 11 DR. SOLOMON’S PROFERRED EXPERT TESTIMONY IS ORDINARY, NON- 12 CONTROVERSIAL LACK OF CAUSATION EVIDENCE, NOT MEDICAL OPINION 13 TESTIMONY. 14 Dr. Solomon’s testimony will establish a lack of cause-in-fact between the incident and the 15 injury diagnosed by the doctors. His testimony is essential to Defendants’ case, his opinions can only 16 be rendered by an expert in biomechanics and physical forces, and his opinions cannot be rendered by 17 any medical doctor in this case. At the intersection between event and injury is precisely where 18 biomechanical expert testimony in both civil and criminal actions is routinely utilized, and its use has 19 been approved in numerous published and unpublished opinions dating back decades. 20 For example, in Pineda v. Los Angeles Turf Club (1980) 112 Cal.App.3d 53, a biomechanics 21 expert was permitted to testify, based upon the expert’s review of medical records, witness testimony, 22 and photographic evidence from a horse racing accident, that a fatal injury was caused by the 23 decedent’s head being struck by a horse’s head: 24 Earlier, however, Siegel was asked the following question: "Sir, were you able to determine from the information supplied to you through any officer or through Santa 25 Anita and further through your own investigatory processes how the plaintiff was injured?" He testified that in his opinion Pineda was injured when "[he] was struck by 26 the horse's head, his head against the horse's head or the horse's head against his, 27 rather." He arrived at his conclusion in the following manner: "The first step, of course, was to review the witness statements to try and get some feeling. This is that 28 closing down, if you will, process to try and understand from the witnesses what they 3 DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES saw or what they thought they saw, to look at the medical records to determine the 1 area of impact, where were the contacts that occurred. 2 "And then with that information to go to the film and determine from the film on a frame by frame basis, not only if we could determine numerical information or 3 velocities, this rate of change distance over time, but also to determine what is called 4 kinematics, that is, the motion that takes place each frame. 5 "And based upon the film and kinematic and dynamic analysis of the film, the medical records, and also the witness statements, particularly two witness statements 6 or two witnesses, Miss Fitzpatrick and Mr. Gonzales, I found that their description of the event very, very closely related to what occurred in the film." 7 Siegel testified that he could not see the actual impact of the horse's head with Pineda's 8 head in the film. The film did show, however, that "the two objects, the heads, are on a collision course, . . ." In order to reach his conclusion that the horse's head hit Pineda's 9 head he did refer to the witnesses' statements "[as] well as my knowledge of the 10 biomechanics and the force directions taken from Doctor Bucklin's report [the autopsy report] and Doctor Bucklin's discussion, or my discussion with him." 11 *** 12 We have no doubt that neither witness' views would have changed had he been asked to exclude the pretrial statements from consideration. The important data were clearly 13 the medical records and the film. Yet even if either expert had stated that he needed 14 the statements, respondents' counsel could easily have filled the gap with a hypothetical question incorporating the testimony of the five witnesses. 15 In sum: although the presentation of the expert testimony lacked some traditional 16 polish, if there was error it was utterly harmless. 17 (Pineda v. Los Angeles Turf Club (1980) 112 Cal.App.3d 53, 59-60, 62). 18 A biomechanics expert also may testify regarding the lack of causation. For example, in 19 DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, a biomechanics expert was properly permitted to 20 testify that he would not have expected plaintiff to suffer any injury, including specifically any knee 21 or shoulder injury, based upon the forces at work in the subject car accident: 22 Dr. Burkhard properly disclosed “‘the general substance’” of his expected testimony, sufficiently so the parties could adequately prepare for trial [citation omitted]. 23 Specifically, Dr. Burkhard testified at his deposition that one would not expect 24 plaintiff to have suffered any injury. In response to a question by plaintiff's counsel as to whether in his opinion plaintiff “sustain[ed] any injury in this accident” (italics 25 added), Dr. Burkhard explained, in pertinent part, “Not having read his depo or the medical records, the only way I can answer is this: if [plaintiff] is shown to be robustly 26 healthy, relatively active prior to this accident, this accident poses no more threat [than 27 doing everyday types of things around the house], and I would not have expected injury to him.” 28 4 DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES Thus, the general substance of Dr. Burkhard's opinion at the deposition was that one 1 would not expect plaintiff to have suffered “any” injury. Therefore, his 2 subsequent testimony at trial regarding the lack of any expectation of specific knee or shoulder injury resulted in no unfair surprise for plaintiff. Dr. Burkhard simply did not 3 exceed the general scope of his deposition testimony when he opined at trial that one would not expect the accident to result in the specific knee and shoulder injuries 4 complained of because the “forces are very comparable” to what would be 5 experienced during normal “routine activities.” Accordingly, the trial court did not abuse its broad discretion [citation omitted] in permitting Dr. Burkhard to so testify at 6 trial. 7 (DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 166). 8 Plaintiffs have used biomechanical expert testimony regarding causation to defeat summary 9 judgment for decades. For example, in Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 10 703, testimony from a biomechanics expert was held to create a triable question of fact as to 11 causation sufficient to defeat a defendant’s summary judgment motion, based upon the expert’s 12 opinion that the plaintiff’s injury was caused by a baseball hitting him in the head: 13 We first note that Dr. Kent attached his curriculum vitae to his declaration. It 14 establishes that Dr. Kent has a Ph.D. in physical education, with a specialty in clinical kinesiology. He is a diplomat of the American Board of Forensic Medicine and of the 15 American Board of Forensic Examiners. He describes his work experience from 1983 to present as follows: "Consulting services in Forensic and Occupational 16 Kinesiology, specializing in the analysis of biomechanics of trauma, human 17 performance analysis, rehabilitation medicine and biomechanical accident reconstruction." (Italics added.) We now quote from the pertinent portions of his 18 declaration: 19 "4. I have reviewed medical records regarding Mr. Sanchez's anatomic injuries as a result of this subject event. I have reviewed archival videotape footage of Mr. Sanchez 20 pitching prior to the date of injury. I have reviewed the deposition transcripts of Mr. Sanchez, [***25] Justin Kiersby and Michael Gillespie. I have also reviewed and 21 relied upon literature regarding skull fracture and traumatic brain injury 22 biomechanics, National Collegiate Athletic Association (NCAA) Baseball rules and safety standards, and the Consumer Products Safety Commission (CPSC) and 23 research[] conducted under the auspices of Hillerich & Bradsby (H&B). Based upon my review of all of these materials, my training and experience, I have also completed 24 quantitative analysis regarding the velocity necessary to cause Mr. Sanchez's injury 25 pattern. I then compared the resulting ball flight time to the safety criteria established by the NCAA, CPSC and H&B sponsored literature. Based upon this analytic process, 26 I have formed the opinions to follow. 27 *** 28 "8. Based upon my analysis of this matter, it is more probable than not that Mr. Sanchez's head injury resulted from the use of a baseball bat which possessed 5 DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES mechanical properties allowing a batted ball to attain a flight velocity in excess of a 1 velocity that would allow for a reasonable reaction time by a pitcher in a post-delivery 2 posture in a game situation." (Italics added.) *** 3 We conclude the evidence presented by appellant is sufficient to create a triable issue 4 of fact regarding causation. [citations omitted]. 5 (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 717-719). 6 In many cases, both sides use biomechanical expert testimony regarding causation, as its use is 7 not controversial and establishes a baseline for other expert testimony. For example, in Romine v. 8 Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, both parties used biomechanical experts to opine 9 regarding the manner in which the plaintiff’s injury occurred: 10 Dr. Joseph Burton, plaintiff's expert on biomechanics (effect of forces on organic 11 bodies), kinematics (how objects behave when a force acts on them), and forensic pathology in car accidents, testified that the primary force on plaintiff's head that 12 caused her injuries was downward. As plaintiff had no significant head injuries, in order to injure her neck as she did, something had to stop her head without seriously 13 injuring it. Dr. Burton stated that she would have suffered the neck injuries if her seat 14 back reclined, her torso moved backward, and the seat back behind her stopped her head. He further opined that plaintiff would not have received the same types of 15 injuries if her seat had remained upright. 16 *** Catherine Corrigan, defendants' biomechanical engineering expert, testified that 17 plaintiff sustained the injuries to her neck during the rear-end impact by the Altima. 18 (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 997-998, 1004, 1015). 19 Finally, there is no exception to the above rules for determining causation of brachial plexus 20 injuries, even for injuries that occur during the birthing process. For example, in Williams v. United 21 States (E.D. Mich 2019) 2019 U.S. Dist. LEXIS 236703, the Court denied a motion to exclude a PhD’s 22 expert opinion as to the causation of a baby’s brachial plexus injury: 23 Williams also notes that Dr. Grimm is not a medical doctor, and her opinions are based 24 on biomechanics, not clinical experience. [citation omitted]. However, application of 25 forces from labor and delivery is a biomechanical process, and biomedical engineers study and review the birthing process. [citation omitted]. Williams seems to admit as 26 much, as she cites in her brief to a chapter in Biomechanics of the Female Public Floor. [citation omitted]. Therefore, although Dr. Grimm's studies may only have been peer 27 reviewed in connection with OBGYN journals, her approaches are accepted within the 28 scientific community, which include both biomechanical engineers and medical professionals. 6 DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES 1 (Williams v. United States (E.D. Mich. 2019) 2019 U.S. Dist. LEXIS 236703, p. 12-18); see also, Silong 2 v. United States (E.D. Cal. 2007) 2007 U.S. Dist. LEXIS 67498, p. 8-11 (denying motion to exclude 3 Dr. Grimm’s testimony regarding causation of a baby’s brachial plexus injury, noting that “Plaintiffs' 4 arguments affect the weight of Dr. Grimm's opinions, not admissibility. Plaintiffs may fully examine 5 the issues raised in this motion on cross-examination or by the presentation of competing evidence.”) 6 7 CONCLUSION 8 9 For all of the foregoing reasons, Dr. Kenneth Solomon’s expert testimony regarding lack of 10 causation between the incident and the plaintiff’s injuries is admissible in this matter and any criticism 11 should be directed to the weight of his testimony, not its admissibility. Plaintiff has had ample 12 opportunity to depose Dr. Solomon and will have ample opportunity to cross-examine him after his 13 direct testimony concludes. 14 Respectfully submitted, 15 16 DATED: June 30, 2023 RESNICK & LOUIS, P.C. 17 18 By: ________________________________________ 19 Martin D. Holly, Esq. Erika N. Brenner, Esq. 20 Attorneys for Defendant 21 TARGET CORPORATION 22 23 24 25 26 27 28 7 DEFENDANTS’ BENCH MEMORANDUM REGARDING ADMISSIBILITY OF EXPERT TESTIMONY SHOWING LACK OF CAUSATION (DR. KENNETH SOLOMON); COMPENDIUM OF CITED CASES Cited As of: June 28, 2023 4:19 AM Z DePalma v. Rodriguez Court of Appeal of California, Second Appellate District, Division Two May 4, 2007, Filed B190062 Reporter 151 Cal. App. 4th 159 *; 59 Cal. Rptr. 3d 479 **; 2007 Cal. App. LEXIS 839 ***; 2007 Cal. Daily Op. Service 5904 trial. Specifically, the expert testified at his deposition WILLIAM DEPALMA, Plaintiff and Appellant, v. SONIA that one would not have expected plaintiff to have RODRIGUEZ, Defendant and Respondent. suffered any injury. The expert's subsequent trial testimony regarding the lack of any expectation of Subsequent History: [***1] The Publication Status of specific knee or shoulder injury resulted in no unfair this Document has been Changed by the Court from surprise for plaintiff. Even assuming arguendo the Unpublished to Published May 24, 2007. testimony complained of was error, it was not so Prior History: Superior Court of Los Angeles County, prejudicial as to have resulted in a miscarriage of justice No. VC042431, Daniel S. Pratt, Judge. warranting a new trial. The special verdict finding that defendant's negligence was not a substantial factor Disposition: Affirmed. causing harm was supported by the testimony of plaintiff's doctor. Core Terms Outcome The judgment was affirmed. deposition, left shoulder, left knee, deposition testimony, injuries, knee, forces, vehicle accident, biomechanic, declaration, experienced, everyday, shoulder LexisNexis® Headnotes Case Summary Procedural Posture Evidence > Admissibility > Procedural Plaintiff sued defendant in the Los Angeles County Matters > Rulings on Evidence Superior Court, California, for personal injuries allegedly arising from a motor vehicle accident. The jury's special HN1[ ] Procedural Matters, Rulings on Evidence verdict found that defendant was negligent, but that her negligence was not a substantial factor in causing any The trial court has broad discretion in ruling on the harm to plaintiff. Plaintiff appealed. admissibility of evidence. Overview Plaintiff argued that the trial court erred in allowing defendant's biomechanic expert to testify at trial to Civil Procedure > ... > Discovery > Methods of opinions beyond those he had testified to at his Discovery > Expert Witness Discovery deposition. At trial, the defense expert testified that the nature of the low speed accident was such that one Evidence > ... > Testimony > Expert would not expect a person of normal health to have Witnesses > General Overview suffered any injury from the accident. The instant court concluded that the expert did not exceed the scope of HN2[ ] Methods of Discovery, Expert Witness his deposition testimony. The expert properly disclosed Discovery the general substance of his expected testimony sufficiently so the parties could adequately prepare for Although a party is required to disclose the substance of Brooks Gresham Page 2 of 6 151 Cal. App. 4th 159, *159; 59 Cal. Rptr. 3d 479, **479; 2007 Cal. App. LEXIS 839, ***1 the facts and the opinions to which the expert will testify, CA(2)[ ] (2) this does not require disclosure of specific facts and opinions. Witnesses § 10—Experts—Disclosure—Substance of Facts and Opinions. Headnotes/Summary Although a party is required to disclose the substance of the [*160] facts and the opinions to which the expert will testify, this does not require disclosure of specific Summary facts and opinions. CALIFORNIA OFFICIAL REPORTS SUMMARY Plaintiff sued defendant for personal injuries allegedly CA(3)[ ] (3) arising from a motor vehicle accident. At trial, Witnesses § 10—Experts—Opinion at Deposition— defendant’s biomechanic expert opined that the nature General Substance—Subsequent Trial Testimony— of the low-speed accident was such that one would not Unfair Surprise. expect a person of normal health to have suffered any injury from the accident. The jury's special verdict found Where the general substance of a defense expert’s that defendant was negligent, but that defendant’s opinion at a deposition was that one would not expect negligence was not a substantial factor in causing any the plaintiff to have suffered any injury arising from a harm to plaintiff. (Superior Court of Los Angeles County, low-speed automobile accident, the expert's subsequent No. VC042431, Daniel S. Pratt, Judge.) testimony at trial regarding the lack of any expectation of specific knee or shoulder injury resulted in no unfair The Court of Appeal affirmed the judgment. The court surprise for the plaintiff, and the expert did not exceed concluded that the defense expert did not exceed the the general scope of his deposition testimony. scope of his deposition testimony. The expert properly disclosed the general substance of his expected [Cal. Forms of Pleading and Practice (2007) ch. 198, testimony sufficiently so the parties could adequately Discovery: Exchange of Expert Witness Information, § prepare for trial. Specifically, the expert testified at his 198.19; 1 Kiesel et al., Matthew Bender Practice Guide: deposition that one would not have expected plaintiff to Cal. Civil Discovery (2007) § 13.14; 2 Witkin, Cal. have suffered any injury. The expert's subsequent Evidence (4th ed. 2000) Discovery, § 198.] testimony at trial regarding the lack of any expectation of specific knee or shoulder injury resulted in no unfair Counsel: O'Neill & Marchiondo and Philip L. surprise for plaintiff. Even assuming arguendo the Marchiondo for Plaintiff and Appellant. testimony complained of was error, it was not so prejudicial as to have resulted in a miscarriage of justice Michael Maguire & Associates, Paul Kevin Wood and warranting a new trial. The special verdict finding that Kevin R. Jolly for Defendant and Respondent. defendant’s negligence was not a substantial factor causing harm was supported by the testimony of Judges: Boren, P. J., with Doi Todd and Chavez, JJ., plaintiff’s own physician. (Opinion by Boren, P. J., with concurring. Doi Todd and Chavez, JJ., concurring.) Opinion by: Boren Headnotes Opinion CA(1)[ ] (1) [**479] BOREN, P. J.—Plaintiff William DePalma sued Evidence § 21.2—Admissibility—Trial Court’s defendant Sonia Rodriguez for personal injuries Discretion—. allegedly arising from a motor vehicle accident. The jury's special verdict found that defendant was The trial court has broad discretion in ruling on the negligent, but that her negligence was not a substantial admissibility of evidence. factor in causing any harm to plaintiff. Plaintiff contends he is entitled to a new trial because the court abused its discretion in allowing defendant's biomechanic expert to Brooks Gresham Page 3 of 6 151 Cal. App. 4th 159, *160; 59 Cal. Rptr. 3d 479, **479; 2007 Cal. App. LEXIS 839, ***1 testify at trial to opinions beyond those he had testified compartment had collapsed and there was no articular to at his deposition. cartilage left. There were also other changes “of a degenerative nature” in other areas of his knee. Plaintiff The general substance of the expert witness's opinion was a surgical candidate for a left knee replacement testimony at his deposition was that the nature of the and for shoulder surgery. [*162] According to Dr. low-speed accident was such that one would not expect Swanson, the vehicle accident in question resulted in a person of normal health to have suffered “any” injury only an “incremental” increase [***4] in plaintiff's [*161] from the accident [***2] in question. Thus, we symptoms and loss of function, and it “wasn't the sole find that the expert did not exceed the scope of his cause of the underlying process which is degenerative deposition testimony when he opined at trial that one joint disease.” Dr. Swanson deemed plaintiff not able to would not expect the accident to result in the specific return to his previous occupation working on elevators. knee and shoulder injuries complained [**480] of because the “forces are very comparable” to what would Defendant presented testimony at trial from Dr. Peter be experienced during normal “routine activities,” and Burkhard, a biomechanic expert and accident there was also “no expectation of knee contact.” In any reconstructionist, who was previously employed by event, it is not reasonably probable that a more General Motors Research Laboratories in the crash favorable result would have ensued; the alleged error injury group at their biomedical science department and was not prejudicial. by TRW in the area of structural dynamics. Dr. Burkhard analyzed the vehicle accident at issue under two scenarios: first, where defendant's vehicle struck Avina's FACTS vehicle first and pushed Avina's vehicle into plaintiff's vehicle; and second, where Avina's vehicle struck On January 6, 2003, plaintiff's vehicle was the front car plaintiff's vehicle, and then defendant's vehicle struck in a three-car, chain-reaction, rear-end collision. The Avina's, pushing it into plaintiff's vehicle a second time. middle car was driven by Teresa Avina (who settled with defendant prior to trial), and the last car was driven by According to Dr. Burkhard, even under the second defendant. scenario with a double impact and greater force, based upon the damage suffered by the vehicles the maximum The factual disputes at trial focused on the severity of impact sustained by plaintiff's stopped vehicle would the vehicle impacts and whether Avina's vehicle collided have been a three- to five-mile-per-hour crash impact. A with plaintiff's before or after defendant's vehicle collided three-mile-per-hour impact is similar to a car with Avina's. Defendant testified that her Toyota came stopping [***5] in a parking lot where the tires into contact with the rear of Avina's car only once. accidentally hit a raised parking curb. A five-mile-per- However, Avina, whose deposition testimony was read hour impact is similar to amusement park bumper cars into the record, indicated that her vehicle was hit from hitting each other. Dr. Burkhard further testified that the the rear two times by defendant's [***3] vehicle. Avina damage to the front of Avina's vehicle appeared to be also explained that “[n]othing happened to [her] vehicle” [**481] an “under ride,” meaning that Avina's bumper except “a little scratch” on the back of the rear portion. slid underneath plaintiff's bumper because Avina was braking at the time. Plaintiff presented medical testimony regarding injury to his left knee and left shoulder. Dr. Jacob Tauber, an Counsel for defendant then asked Dr. Burkhard if, orthopedic surgeon, conducted an independent medical based on his professional experience and the examination of plaintiff and reviewed plaintiff's medical information available to him, he believed “there would records. Dr. Tauber indicated that plaintiff had be any reasonable expectation [of injury] to [plaintiff's] degenerative arthritis in his left knee and impingement left knee.” Counsel for plaintiff objected on the ground syndrome with acromioclavicular arthritis in his left that such a question called for an answer “that's beyond shoulder. Plaintiff was a candidate for left knee the opinion expressed in his deposition.” The court replacement surgery and for decompression surgery on overruled the objection, and Dr. Burkhard replied, “With his left shoulder. regards to the knee, I find really no potential for injury in this particular case.” He explained that there was “no Dr. Gerald Swanson, plaintiff's treating physician, also expectation of knee contact” because the body would be testified that plaintiff had left shoulder impingement moving away from the dashboard, “and then on rebound syndrome, meaning a problem with the rotator cuff there's a very minimal movement forward, particularly of mechanism. Regarding plaintiff's left knee, the medial Brooks Gresham Page 4 of 6 151 Cal. App. 4th 159, *162; 59 Cal. Rptr. 3d 479, **481; 2007 Cal. App. LEXIS 839, ***5 the pelvis or the lower extremities. … The forces are [***7] In an effort to undermine plaintiff's credibility, very comparable to what you would experience counsel for defendant established the fact of several just [***6] in everyday life. That's the level of force prior injuries suffered by plaintiff. In November of 2002, [plaintiff] would have experienced [*163] here.” Again three months prior to the vehicle accident at issue, over the objection of plaintiff's counsel, the court plaintiff explained that when he picked up a large sheet permitted Dr. Burkhard to testify similarly that as to of plywood in his garage “my left rib popped, and I felt a plaintiff's left shoulder, “The same answer would also be twinge in my left shoulder.” Plaintiff also admitted that in true. You are looking at forces that are very comparable 1995 he fell down a paved hill, injuring his neck, back to that experienced in performing everyday routine [**482] and shoulder, resulting in medical treatment activities or events.” and a workers' compensation claim. In the mid-1980's, plaintiff had another workers' compensation claim after a Thereafter, counsel for plaintiff cross-examined Dr. compactor fell on him, resulting in injury to his back. Burkhard regarding alleged inconsistencies between his Counsel for defendant [*164] also established that trial and deposition testimony as to whether or not the despite the prior injuries noted above, on health care accident could have caused certain injuries to plaintiff. provider forms plaintiff indicated that he had no prior Dr. Burkhard explained, “What I think I said in my injuries. deposition is that the forces in this particular case are commensurate or are similar to the forces experienced Regarding the extent of the damage to the vehicles during the performance or experience of everyday life, involved in the accident, Avina testified during her and then the obvious implication would be that, if you deposition that her car suffered “just a little scratch” on don't expect this person to be injured doing everyday the back rear portion. Estimates for repair of plaintiff's things, then you wouldn't expect injury here.” 1 vehicle varied from approximately $1,300 to $3,100; the estimate for the repair of defendant's vehicle was approximately $4,200. 1 Dr. Burkhard's deposition was, in pertinent part, as follows: “If [plaintiff is] able to do everyday type[s] of things relatively pain-free, then I would expect this accident to have posed no DISCUSSION [***8] more threat than those everyday types of things. … If everyday types of activities cause him pain, then I would see Plaintiff contends that the trial court abused its this accident causing him some pain. … [¶] … If he's robustly discretion by allowing defendant's biomechanic expert, healthy [meaning he] is able to do everyday types of things Dr. Burkhard, to offer opinions at trial beyond the scope and is relatively active and doesn't have pain associated with of the opinions he offered in his deposition testimony. that, this accident poses no more threat than those types of Plaintiff asserts that in reliance on Dr. Burkhard's situation[s].” deposition testimony, and particularly his lack of any opinion regarding plaintiff's left knee and left shoulder In response to a question by plaintiff's counsel as to whether in injuries (the most significant injuries alleged), plaintiff his opinion plaintiff “sustain[ed] any injury in this accident,” found it unnecessary to have his own biomechanic (italics added) Dr. Burkhard explained, “Not having read his depo or the medical records, the only way I can answer is this: expert testify and thus elected to undesignate him as an if [plaintiff] is shown to be robustly healthy, relatively active expert witness at trial. According to plaintiff, over his prior to this accident, this accident poses no more threat [than objections at trial Dr. Burkhard was permitted to express doing everyday types of things around the house], and I would his previously concealed opinions regarding plaintiff's not have expected injury to him. [¶] If you tell me or the facts left knee and left shoulder, and plaintiff was tell me that he had some … problems with his back or neck “sandbagged” into not calling his own biomechanic prior to this[,] doing everyday types of things around the expert at trial. house, [those normal] activities caused him pain, could this accident have caused him some additional pain? The answer CA(1)[ ] (1) However, we find no abuse of HN1[ ] the is yes.” trial court's “ ‘broad discretion in ruling on the During his deposition, Dr. Burkhard also indicated he was admissibility of evidence.’ ” (Tudor Ranches, Inc. v. unfamiliar with plaintiff's complaints of physical injuries, other State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, than complaints of neck and back pain noted in the police 1431–1432 [77 Cal. Rptr. 2d 574].) And the cases relied report, and he eschewed any discussion of causation upon by plaintiff, Jones v. Moore (2000) 80 Cal.App.4th regarding pain in the knees and shoulders. At the conclusion 557 [95 Cal. Rptr. 2d 216] (Jones), and Bonds v. Roy of his deposition, Dr. Burkhard acknowledged that he had no (1999) 20 Cal.4th 140 [83 Cal. Rptr. 2d 289, 973 P.2d more opinions to state other than those already stated. Brooks Gresham Page 5 of 6 151 Cal. App. 4th 159, *164; 59 Cal. Rptr. 3d 479, **482; 2007 Cal. App. LEXIS 839, ***8 66] [***9] (Bonds), are factually distinguishable. representation that the opinions expressed during an expert deposition are the only ones that need be met at It is well settled that an expert may be precluded from trial.” (Id. at pp. 565–566.) testifying at trial on a subject that was not described in his expert witness declaration. (Bonds, supra, 20 CA(2)[ ] (2) However, the instant case is quite different Cal.4th at p. 145.) The Supreme Court in Bonds held from the situation in Jones, where testimony excluded that “the exclusion sanction of [Code of Civil Procedure by the trial court involved an entirely new area of section 2034,] subdivision (j) applies when a party testimony not previously disclosed. Here, Dr. Burkhard's unreasonably fails to submit an expert witness trial testimony constituted merely an expanded declaration that fully complies with the content description and interpretation of the conclusions stated requirements of [Code of Civil Procedure section 2034,] in his deposition testimony. HN2[ ] Although a party is subdivision (f)(2), including the requirement that the required to “ ‘disclose the substance of the facts and the declaration contain ‘[a] brief narrative statement of the opinions to which the expert will testify,’ ” this “does not general substance of [*165] the testimony that the require disclosure of specific facts and opinions.” expert is expected to give.’ ” 2 (Bonds, at pp. 148–149.) (Williams v. Volkswagenwerk Aktiengesellschaft (1986) This ensures that the opposing party has an opportunity 180 Cal. App. 3d 1244, 1257, 1258 [226 Cal. Rptr. to gather sufficient evidence for cross-examination and 306].) rebuttal. (Id. at pp. 146–147.) The decision in Bonds, [*166] however, has no direct bearing here because there is no issue concerning the scope of the declaration by an Dr. Burkhard properly disclosed “ ‘the general expert witness. Rather, the issue in the present case substance’ ” of his expected testimony, sufficiently so concerns the expert's deposition. the parties could adequately prepare for trial. (Bonds, supra, 20 Cal.4th at p. 148.) Specifically, Dr. Burkhard [***10] Plaintiff's reliance on Jones, supra, 80 testified at his deposition that one would not [***12] Cal.App.4th 557, although closer factually, is also expect plaintiff to have suffered any injury. In response unavailing. Jones concerned an expert in a legal to a question by plaintiff's counsel as to whether in his malpractice action, who testified to the manner in which opinion plaintiff “sustain[ed] any injury in this accident” an attorney purportedly committed malpractice during a (italics added), Dr. Burkhard explained, in pertinent part, certain period of time. During his deposition the expert “Not having read his depo or the medical records, the [**483] testified to specific opinions and affirmatively only way I can answer is this: if [plaintiff] is shown to be stated that they were the only opinions he would offer at robustly healthy, relatively active prior to this accident, trial. The expert indicated that if he developed further this accident poses no more threat [than doing everyday opinions, he would notify counsel. (Id. at p. 565.) The types of things around the house], and I would not have court thereafter limited the trial testimony of the plaintiff's expected injury to him.” expert witness, excluding testimony as to other conduct by the attorney after the timeframe addressed in the CA(3)[ ] (3) Thus, the general substance of Dr. expert's deposition. (Id. at p. 564.) The defendant in Burkhard's opinion at the deposition was that one would Jones prevailed and the plaintiff appealed. not expect plaintiff to have suffered “any” injury. Therefore, his subsequent testimony at trial regarding The appellate court in Jones noted that the expert the lack of any expectation of specific knee or shoulder witness's declaration was arguably broad enough to injury resulted in no unfair surprise for plaintiff. Dr. encompass his trial testimony. Nonetheless, it observed Burkhard simply did not exceed the general scope of his that under the circumstances “it would be grossly unfair deposition testimony when he opined at trial that one and prejudicial to permit the expert to offer additional would not expect the accident to result in the specific opinions at trial.” (Jones, supra, 80 Cal.App.4th at p. knee and shoulder injuries complained of because the 565.) [***11] Thus, it concluded that a party has a “right “forces are very comparable” to what would be to rely on the other party's expert's express experienced during normal “routine activities.” Accordingly, [***13] the trial court did not abuse its broad discretion (see Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972 [105 Cal. Rptr. 2d 88]) in 2 The Code of Civil Procedure sections discussed in Bonds permitting Dr. Burkhard to so testify at trial. have been repealed but replaced by substantially similar provisions with different section numbers. (See Code Civ. Even assuming arguendo the testimony complained of Proc., §§ 2034.260, subd. (c)(2) & 2034.300, subd. (b).) Brooks Gresham Page 6 of 6 151 Cal. App. 4th 159, *166; 59 Cal. Rptr. 3d 479, **483; 2007 Cal. App. LEXIS 839, ***13 was error, it was not so prejudicial as to have resulted in a miscarriage of justice warranting a new trial. (Evid. Code, § 353, subd. (b); see Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 [232 Cal. Rptr. 528, 728 P.2d 1163].) The jury's special verdi