(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)
It is noteworthy that the defendant did not produce any eye witnesses to dispute Ms. Diaz’s observations. The best that the defendant could say was that she wasn’t sure if she braked and that she didn’t remember hearing the screeching of tires that typically accompanies sudden braking. Not surprisingly, there was no evidence that the were any skid marks left by the defendant’s tires.
Simply because no ambulance was called to the scene and Ms. Hayes drove herself home does not establish, as defendant seems to think it does, that this was a minor accident. It is not an uncommon event for several hours or more to pass before pain from the accident caused injury manifests itself. Moreover, in her motion defendant neglects to mention that her car was totaled, with more than $9,600.00 in damages. The force of the impact was so great that plaintiff’s solid steel trailer hitch, which was bolted to the frame of the van, was cracked and pushed into the rear of the van sealing the rear door shut.
Defendant asserts that Dr. Kelkar’s unrebutted biomechanical accident reconstruction testimony established that plaintiff could not have been injured as she claimed. No trier of fact is required to accept expert testimony as gospel, even if unrebutted. (In re Marriage of Duncan (2001) 90 Cal. App. 4th 617.) [A]s a general rule, provided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.] [Citation.] This rule is applied equally to expert witnesses. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.)
Given that Dr. Kelkar was not a percipient witness, did not visit the scene, did not consider Ms. Diaz’s eyewitness account of the incident, and did not personally examine either plaintiff’s or defendant’s car, but rather relied upon photographs, the jury had good reason to reject his testimony. The chief value of an expert’s testimony…rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion. (People v. Samuel (1981) 29 Cal. 3d 489, 499.)
In short, Ms. Diaz saw the whole accident, she testified about what she saw, and she was a completely independent and reliable witness. Even at this late stage of the proceedings, defendant has yet to suggest any reason why her testimony should be discounted or disbelieved. The jurors heard both Dr. Kelkar’s non-percipient reconstruction testimony and Ms. Diaz’s eyewitness testimony and, by their verdict, indicated that they found Ms. Diaz’s eyewitness testimony along with plaintiff’s account of being hit hard and the property damage aftermath to be more persuasive. (See Part 3 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.