Alan Van Gelder
Combating the “anything is possible” expert
Speculative possibility does not become admissible testimony merely because it comes out of the mouth of a defense expert
Imagine the following scenario:
Plaintiff’s counsel or plaintiff’s expert argues, “Defendant is negligent. Do I know if that negligence caused plaintiff’s injuries? I’m not sure, it is certainly one of several interesting possibilities.” In less than 3.47 seconds plaintiff would be bombarded by about 10 or 15 motions from defendant seeking to have his case thrown out and seeking to have all reference to the exis- tence of his expert, let alone his opinions, erased from the face of the earth. Each motion would make the same argument – a party and its experts are not allowed to speculate, and, an expert must have an opinion to a reasonable degree of probabil- ity that the negligence caused the injury. Now imagine a second scenario:
Defense counsel or defendant’s expert argues, “I don’t think defendant caused plaintiff’s injuries. I’m not really sure what caused plaintiff’s injuries. It’s possi- ble that plaintiff is suffering from a pre- existing medical condition, or maybe plaintiff’s injuries are being caused by some unknown disease that hasn’t shown up on any of the medical records, or maybe plaintiff needs to adjust his med- ications, or maybe plaintiff has a psycho- logical disorder, or maybe plaintiff needs to change his sleeping habits, or maybe plaintiff is allergic to cat hair, or maybe plaintiff grew up in a town that uses too much pesticide. I’m not really sure what is going on here, all of these are interesting possible explanations for what caused plaintiff’s injuries.” While the first scenario is only a hypo-
thetical scenario, the second scenario is playing out in cases all over the State on a daily basis. Defendants are constantly bombarding courts with motion after motion trying to end plaintiffs’ cases and exclude plaintiffs’ experts by claiming that
24— The Advocate Magazine JULY 2011
plaintiffs are speculating about possible causes, and then in the exact same breath trying to drown juries with “possibility” defenses that are little more than sheer speculation. Don’t get me wrong, a defendant is
entitled to argue that plaintiff or an expert has failed to meet the burden of proof on a claim or issue. However, as soon as a defendant or an expert says, “Our negligence did not cause this injury, this injury was really caused by X,” the defendant is no longer simply defending him or herself. At that point the defen- dant is making an affirmative claim of alternative causation, an affirmative defense. At trial, a defendant raising an affirmative defense has the burden of proving it. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 469, [110 Cal.Rptr.2d 627]; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794-795 [85 Cal.Rptr.2d 844], Bertero v. National General Corp. (1974) 13 Cal.3d 43, 54 [118 Cal.Rptr. 184].) This means that a defen- dant and a defense expert are bound by the same authorities regarding speculative opinions and foundation for opinions as the plaintiff and the plaintiff’s expert. The law applies equally to both sides.
Speculative nonsense and speculative pos- sibility claims do not suddenly become admissible because they are being offered by the defendant or defense expert. If the expert or the party cannot state an opin- ion to a reasonable degree of probability they risk exclusion, no matter which side of the case the party is on. As the Court wrote in Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304,
1315-1316 [37 Cal.Rptr.2d 541] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little
discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108; Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493. (Emphasis added).)
This article is designed to address the
issue of what happens when a defense expert starts trying to flood the court- room with speculative “possibility” defens- es. There are three ways to approach the issue: Find an expert or item of evidence to obliterate the possibility, attempt to exclude the opinion, or embrace the non- sense to make the defense expert look foolish on the witness stand. Chances are you will need to employ a mix of all three options.
Obviously the easiest way to combat a
speculative possibility defense is to hire an expert who can discredit the claim or find that item of evidence that discredits the claim. The problem with defense expert speculation is that it often makes its initial appearance in the later stages of expert discovery, too close to trial to hire an expert or locate a piece of evidence. Additionally, defensive possibility
speculation is easy to conjure up and inexpensive. The plaintiff usually does not have an endless supply of time, experts or evidence to combat every single form of speculative possibility. Still, if you are able to learn early enough in discovery that for
See Combating, Page 26
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