witness because of his expert status, does not have carte blanche to express any opin- ion. “The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed.” (Pacific Gas and Electric Company v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 [236 Cal.Rptr. 630].) If a defense expert is going to claim
that plaintiff’s injuries were caused by some other source, he needs to render that opinion to a reasonable degree of probability and back it up with an actual and reasonable basis. If not, you should bring a motion to exclude the expert and/or the expert’s opinions. Although defense experts are not
permitted under the law to dump specula- tive possibility evidence and opinions on the jury, you are not always going to be able to succeed in keeping such specula- tive opinions from the jury. You need to be prepared with experts and facts to deal with the “possibility” defenses. There are ways to take advantage of the fact that the defendant or its experts are trying to dump speculation on to the jury. Because the opinions are little more than pure speculation, you can use the speculation to make the defense experts and the defendant look pretty bad in front of the jury. For example, below is an edited dep-
osition transcript of a defense expert. The case concerned the death of a special- education student who had limited ability to speak. The defense expert was upset at the level of the autopsy performed by the coroner and claimed that there were a number of possible causes of death that could not be ruled out. (Possible causes of death that might serve as a defense). The following exchanges took place
during the deposition: Q. Did they test Plaintiff’s blood at all for anything? A. They did for some of the common drugs of abuse but not anti-seizure med- ications and not some of the drugs that you have to find by looking for them, not by doing a screen. Q. And what would – give me an example of some of those more uncommon drugs you’re talking about.
A. Ecstasy, any of the new salts which are still referred to in tox as bath salts. Q. I mean, come on. Ecstasy would be a reach; right? A. Ecstasy what? Q. Saying that Plaintiff might have taken Ecstasy, that’s a reach; right? A. I’m not saying it’s a reach because I’ve seen some 60-year-old ladies taking cocaine and methamphetamine and basi- cally they didn’t do what they were sup- posed to do and they didn’t rule out a whole lot of possibilities. Q. So you’re telling me it’s realistic in this case to leave Ecstasy in as a realistic possi- bility that plaintiff somehow got a hold of Ecstasy and took it – shortly before he hopped in the shower? A. I’d say the odds are over 50 percent that if plaintiff is going to a school that there’s Ecstasy available at that school, yes. Q. So you’re saying plaintiff using Ecstasy is a reasonable possibility in this case? A. It sure is. Eventually, the expert moved on to
another possible cause of death, a fatal blood clot. Q. So are you saying to a reasonable degree of medical probability that it was a blood clot in his lung that did him in, or are you still sticking with seizure as the cause of death? A. Well, we’re talking about things that were not ruled out. This was not ruled out. It would have been a blood clot most likely originating in his legs and then trav- eling to his lungs and blocking the blood supply to his lungs. … Q. I guess what I’m getting at, doctor, is that you’ve got no evidence whatsoever that plaintiff had a blood clot. This is just a hope that maybe – if they pulled out his lungs, maybe they’d be able to see some evidence of a blood clot. There’s no – you’ve got no basis to suggest to a degree of medical probability that they were going to find something like that in his lungs; correct? A. As I said several minutes ago, it was one of the many things that they didn’t rule out that could be a possible cause of death. Q. Did the coroner rule out ninjas assassinating plaintiff in the shower?
A. They didn’t rule that out. … Q. There’s a difference between ruling something out, though, and stating to a reasonable degree of medical probability it occurred. Just because it wasn’t ruled out does not mean you can sit here and say to a reasonable degree of medical probability that it occurred; correct? A. I can say with medical probability that it possibly could have occurred and it’s not been ruled out. Q. So there’s a reasonable degree of med- ical probability that it’s possible; is that the opinion? A. Without it being ruled out, yes.
To the defense expert’s credit, he
created a new standard of proof, “reason- able degree of medical probability of the existence of a possibility.” This expert was so determined to advocate speculation on behalf of his client that he lost credibility. He can have the greatest resume in the world and his core opinions can be sound, but because he was not willing to give an inch on his determination to spec- ulate, he was forced to take some ridicu- lous credibility-damaging positions. Whether the transcript winds up in a motion in limine or serves as a basis for cross examination in front of the jury, the position staked out by the expert threat- ens to damage his credibility and the credibility of his other opinions. Speculative possibility does not
become admissible merely because it comes out of the mouth of a defense expert. Absent adequate foundation and expertise to render a reasoned opinion to a reasonable degree of probability, the opinion, no matter which side is offering it, is simply not admissible. Anything is possible, but it has to cross the threshold of probable to be admissible.
Alan Van Gelder is an associate at the
law firm of Greene Broillet & Wheeler LLP in Santa Monica, California. He is a 2002 graduate of Southwestern University School of Law and California State University Northridge. Since 2002 Mr. Van Gelder has been representing plaintiffs in severe personal injury cases, wrongful death cases, product lia- bility cases, business litigation cases, and legal malpractice cases.
JULY 2011 The Advocate Magazine — 31
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