Combating — continued from Page 24
example, a defendant is going to “bet the house” on a claim that the injury was caused by some phantom infection that does not show up on any medical test, retaining an infectious disease expert to explain why the claim is nonsense is a very good idea. Even with the best expert, you want
to do everything you can to keep the defendant and the defense expert from dumping speculative possibility in front of the jury. Many Americans love a good conspiracy theory. Despite the fact that there is live video footage of two airplanes slamming into the World Trade Center Towers, there are thousands of Americans who refuse to give up the belief that the towers were brought down by a shadow team of demolition experts hired by the U.S. Government. These same people will
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take speculation they see on the Internet about prevailing wind patterns or the way glass from a 45th story window is “sup- posed to shatter,” and argue that such speculation demonstrates that a shadow demolition team caused the towers to col- lapse. You might have the best expert in the world but if you have jurors who love a good conspiracy theory, there is always a risk that one or more of them will fall in love with speculative nonsense. As such, you should also consider bringing a motion to exclude the speculative possi- bility defenses from the jury. In bringing the motion to exclude
the expert or his possibility defense you are not required to re-invent the wheel. Chances are you have already been bom- barded by defense motions in the past on the same subject. The same authorities the defense loves to use against your experts will work for you. Your main challenge is convincing the judge that the authorities Defendants rely on so repeatedly, apply as much to them as they do to you. The main point you have to highlight
for the judge is that there is a vitally important difference between possibility and something that is a reasonable degree of probability. The judge needs to under- stand that whether the plaintiff or the defense is offering the opinion, it cannot go to the jury unless it is an opinion stat- ed to a reasonable degree of probability. (Espinosa v. Little Co. of Mary Hospital, supra, 31 Cal.App.4th 1304.) This case
provides a clear illustration of the line between mere possibility and reasonable degree of probability. Espinosa dealt with a claim of medical
malpractice that resulted in brain damage to a newborn child. During trial, plain- tiff’s expert conceded that there were three potential causes for the child’s injury. The first was the ingestion of lithi- um by the mother during the early por- tion of the pregnancy, the second was malpractice by the defendant during the hours leading up to the delivery of the child, and the third was malpractice com- mitted by the defendant during the deliv- ery itself. While the defendants were potentially liable if the brain injury occurred during the hours leading up to the delivery or the delivery itself, they were not liable if the damage occurred as a result of the ingestion of lithium. Plaintiff’s experts were forced to con-
cede that all three things: the lithium, the pre-delivery malpractice, and the delivery malpractice, contributed to the brain injury of the child. Plaintiff’s experts could not even quantify which act caused which percentage of the injury. The trial court granted defendants’ motion for non-suit on the grounds that the plain- tiff’s expert could not eliminate the possi- bility that the lithium was responsible for the injuries and could not state with cer- tainty as to how much responsibility the lithium had for the injuries. The Court of
See Combating, Page 28
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26— The Advocate Magazine JULY 2011
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