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1 MALCOLM D. DONALDSON, ESQ. – State Bar No. 185613
LAW OFFICES OF SCOTT C STRATMAN
2 P.O. Box 258829
Oklahoma City, OK 73125-8829
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Phone: (510) 457-3440
4 Email: norcal.legal@farmersinsurance.com
5 Attorney for Defendant,
LOTUS HOSPITALITY II, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN MATEO
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Deborah Kelly Garland Peric , Case No.: 21-CIV-04971
10 UNLIMITED JURISDICTION
Plaintiffs,
11 ASSIGNED TO FOR ALL PURPOSES:
vs. HON. NANCY L. FINEMAN
12 DEPT: 4
Lotus Hospitality II, Inc. and DOES 1 TO 50, ,
13 MOTION IN LIMINE TO EXCLUDE
Defendants. CAUSATION TESTIMONY BY
14 PLAINTIFF
15 Trial Date: February 26, 2024
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TO THE COURT AND ALL INTERESTED PARTIES:
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Defendant, LOTUS HOSPITALITY II, INC., move the court, in limine, as follows:
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In California, “The law is well settled that in a personal injury action causation must be
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proven within a reasonable medical probability based upon competent expert testimony.” Jones v.
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Ortho Pharmaceutical Corporation, et. al., (1985), 163 Cal.App.3d 396 at 402, Cottle v. Superior
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Court, (1992), 3 Cal.App.4th 1367 at 1384. Additionally, Evidence Code § 801 requires the
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plaintiff to present expert testimony on issues that are outside the experience of the trier of fact.
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California Evidence Code '801(a).
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In both Cottle and Jones, expert testimony was presented as to possible medical causes of
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the respective plaintiff’s illnesses. The respective courts, however, found that the present expert
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testimony was insufficient in that it produced merely a medical possibility and not a legal
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probability sufficient to establish a prima facie case. Hence the Jones court affirmed a nonsuit,
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MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 1
1 (Jones, 163 Cal.App.3d at 402) and the Cottle court affirmed the trial court’s exclusion of
2 evidence, holding it was harmless error. Cottle, 3 Cal.App.4th at 1381. While the Cottle Court
3 limited its holding to complex litigation cases, the underlying reasoning of both Cottle and Jones
4 is to avoid jury speculation upon possible inferences. Jones, 163 Cal.app.3d at 403, Cottle, 3
5 Cal.App.4th at 1384-1385.
6 Unlike the attempt by the plaintiffs in the Cottle and Jones cases to present expert medical
7 testimony on injury causation, here the plaintiff has no medical expert to testify about the probable
8 cause of the injury or the need for medical treatment. Without a competent medical expert, the
9 plaintiff cannot prove within a reasonable medical probability that the accident caused injury
10 which required medical treatment.
11 In establishing a prima facie case the Jones court stated that, “The plaintiff must produce
12 evidence which supports a logical inference in his favor and which does more that merely permit
13 speculation or conjecture.” Jones, 163 Cal.App.3d at 402. Since the plaintiff lacks the requisite
14 expert witness to testify within a reasonable medical probability about the probable cause of the
15 injury or any need for medical treatment and any lay testimony would be a hindrance to the tier of
16 fact, defendant requests evidence of the medical treatment be excluded.
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DATED: January 17, 2023 LAW OFFICES OF SCOTT C STRATMAN
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20 BY:
21 MALCOLM D. DONALDSON, ESQ.
Attorney for Defendant,
22 LOTUS HOSPITALITY II, INC.
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MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 2
1 Re: Peric v. Lotus Hospitality II, Inc., et al.
Case Number: 21-CIV-04971
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PROOF OF SERVICE
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Code of Civil Procedure §§ 1013a, 2015.5
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I am a resident of the State of California and over the age of eighteen years, and not a
5 party to the within action. My business address is P.O. Box 258829, Oklahoma City, OK
73125-8829. On February 6, 2024, I served the following document(s):
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MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY
7 PLAINTIFF
By placing the document(s) listed above in a sealed envelope, addressed as set
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forth below, with postage fully prepaid, and placing the envelope for collection
9 and mailing by the U.S. Postal Service on the same day following the firm’s
ordinary business practices of which I am readily familiar. I am aware that on
10 motion of the party served, service is presumed invalid if postal cancellation
date or postage meter date is more than one day after date of deposit for
11 mailing in affidavit.
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By causing a true copy thereof to be personally delivered to the person(s) at the
13 address(es) set forth below.
14 By electronically serving the document(s) described above via a Court
approved File & Serve vendor on those recipients designated on the
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Transaction Receipt located on the vendor’s Website.
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By electronically serving the document(s) to the electronic mail address set
17 forth below on this date before 11:59:59 p.m. pursuant to and consistent with
Code of Civil Procedure §§1010.6(a)(2), (4), (5) and 1010.6(e) from email
18 X address timothy.feeney@farmersinsurance.com.
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I declare under penalty of perjury under the laws of the State of California that the
20 above is true and correct.
21 Executed on February 6, 2024, at Woodland Hills, California.
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TIMOTHY C. FEENEY
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MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 3
1 Re: Peric v. Lotus Hospitality II, Inc., et al.
Case Number: 21-CIV-04971
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SERVICE LIST
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Nikolaus Reed, Esq.
4 Law Offices of Nikolaus W. Reed
40 Pier, Suite 7
5 San Francisco, CA 94107
Attorney for Plaintiff, Deborah Kelly Garland Peric
6 Phone: (415) 940-7766
Fax: (415) 940-7706
7 nikolaus_reed@yahoo.com
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MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 4
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1 MALCOLM D. DONALDSON, ESQ. – State Bar No. 185613 LAW OFFICES OF SCOTT C STRATMAN 2 P.O. Box 258829 Oklahoma City, OK 73125-8829 3 Phone: (510) 457-3440 4 Email: norcal.legal@farmersinsurance.com 5 Attorney for Defendant, LOTUS HOSPITALITY II, INC. 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN MATEO 9 Deborah Kelly Garland Peric , Case No.: 21-CIV-04971 10 UNLIMITED JURISDICTION Plaintiffs, 11 ASSIGNED TO FOR ALL PURPOSES: vs. HON. NANCY L. FINEMAN 12 DEPT: 4 Lotus Hospitality II, Inc. and DOES 1 TO 50, , 13 MOTION IN LIMINE TO EXCLUDE Defendants. CAUSATION TESTIMONY BY 14 PLAINTIFF 15 Trial Date: February 26, 2024 16 17 TO THE COURT AND ALL INTERESTED PARTIES: 18 Defendant, LOTUS HOSPITALITY II, INC., move the court, in limine, as follows: 19 In California, “The law is well settled that in a personal injury action causation must be 20 proven within a reasonable medical probability based upon competent expert testimony.” Jones v. 21 Ortho Pharmaceutical Corporation, et. al., (1985), 163 Cal.App.3d 396 at 402, Cottle v. Superior 22 Court, (1992), 3 Cal.App.4th 1367 at 1384. Additionally, Evidence Code § 801 requires the 23 plaintiff to present expert testimony on issues that are outside the experience of the trier of fact. 24 California Evidence Code '801(a). 25 In both Cottle and Jones, expert testimony was presented as to possible medical causes of 26 the respective plaintiff’s illnesses. The respective courts, however, found that the present expert 27 testimony was insufficient in that it produced merely a medical possibility and not a legal 28 probability sufficient to establish a prima facie case. Hence the Jones court affirmed a nonsuit, _______________________________________________________________________________ MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 1 1 (Jones, 163 Cal.App.3d at 402) and the Cottle court affirmed the trial court’s exclusion of 2 evidence, holding it was harmless error. Cottle, 3 Cal.App.4th at 1381. While the Cottle Court 3 limited its holding to complex litigation cases, the underlying reasoning of both Cottle and Jones 4 is to avoid jury speculation upon possible inferences. Jones, 163 Cal.app.3d at 403, Cottle, 3 5 Cal.App.4th at 1384-1385. 6 Unlike the attempt by the plaintiffs in the Cottle and Jones cases to present expert medical 7 testimony on injury causation, here the plaintiff has no medical expert to testify about the probable 8 cause of the injury or the need for medical treatment. Without a competent medical expert, the 9 plaintiff cannot prove within a reasonable medical probability that the accident caused injury 10 which required medical treatment. 11 In establishing a prima facie case the Jones court stated that, “The plaintiff must produce 12 evidence which supports a logical inference in his favor and which does more that merely permit 13 speculation or conjecture.” Jones, 163 Cal.App.3d at 402. Since the plaintiff lacks the requisite 14 expert witness to testify within a reasonable medical probability about the probable cause of the 15 injury or any need for medical treatment and any lay testimony would be a hindrance to the tier of 16 fact, defendant requests evidence of the medical treatment be excluded. 17 18 DATED: January 17, 2023 LAW OFFICES OF SCOTT C STRATMAN 19 20 BY: 21 MALCOLM D. DONALDSON, ESQ. Attorney for Defendant, 22 LOTUS HOSPITALITY II, INC. 23 24 25 26 27 28 _______________________________________________________________________________ MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 2 1 Re: Peric v. Lotus Hospitality II, Inc., et al. Case Number: 21-CIV-04971 2 PROOF OF SERVICE 3 Code of Civil Procedure §§ 1013a, 2015.5 4 I am a resident of the State of California and over the age of eighteen years, and not a 5 party to the within action. My business address is P.O. Box 258829, Oklahoma City, OK 73125-8829. On February 6, 2024, I served the following document(s): 6 MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY 7 PLAINTIFF By placing the document(s) listed above in a sealed envelope, addressed as set 8 forth below, with postage fully prepaid, and placing the envelope for collection 9 and mailing by the U.S. Postal Service on the same day following the firm’s ordinary business practices of which I am readily familiar. I am aware that on 10 motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for 11 mailing in affidavit. 12 By causing a true copy thereof to be personally delivered to the person(s) at the 13 address(es) set forth below. 14 By electronically serving the document(s) described above via a Court approved File & Serve vendor on those recipients designated on the 15 Transaction Receipt located on the vendor’s Website. 16 By electronically serving the document(s) to the electronic mail address set 17 forth below on this date before 11:59:59 p.m. pursuant to and consistent with Code of Civil Procedure §§1010.6(a)(2), (4), (5) and 1010.6(e) from email 18 X address timothy.feeney@farmersinsurance.com. 19 I declare under penalty of perjury under the laws of the State of California that the 20 above is true and correct. 21 Executed on February 6, 2024, at Woodland Hills, California. 22 23 24 TIMOTHY C. FEENEY 25 26 27 28 _______________________________________________________________________________ MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 3 1 Re: Peric v. Lotus Hospitality II, Inc., et al. Case Number: 21-CIV-04971 2 SERVICE LIST 3 Nikolaus Reed, Esq. 4 Law Offices of Nikolaus W. Reed 40 Pier, Suite 7 5 San Francisco, CA 94107 Attorney for Plaintiff, Deborah Kelly Garland Peric 6 Phone: (415) 940-7766 Fax: (415) 940-7706 7 nikolaus_reed@yahoo.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________________________________________________ MOTION IN LIMINE TO EXCLUDE CAUSATION TESTIMONY BY PLAINTIFF - 4