(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/personal injury case and its proceedings.)
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.
Despite the Smith Plaintiffs’ withdrawal of any brain injury claim, it appears that Plaintiffs’ counsel aims to improperly prejudice and confuse the jury by nonetheless presenting Dr. X.’s testimony that the volume of water consumed during the Hold Your Wee for a Wii contest possibly could be expected to cause brain damage.
Evidence regarding whether the amount of water consumed during the Hold Your Wee for a Wii contest could or would be expected to cause brain damage would be irrelevant, highly prejudicial, confusing to the jury, and time consuming.
First, evidence or argument regarding brain damage is not relevant. Cal. Evid. Code § 210 (irrelevant evidence inadmissible). The evidence does not prove or disprove any disputed fact that is of consequence to the determination of the action. Cal. Evid. Code § 210 (defining relevant evidence). The Smith Plaintiffs do not claim that any of them have actually suffered brain damage. Furthermore, it is not disputed that Sherrie Johnson died as a result of pulmonary edema stemming from hyponatremia. While impaired brain function probably was involved in her death, there is no evidence or claim that she suffered from brain damage. Any discussion of whether the amount of water consumed by Jennifer Strange (the second-place finisher) could or would be expected to cause brain damage would be nothing more than a back-door attempt to argue that the amount of water consumed by Lucy Davidson (the contest winner) could or would be expected to cause brain damage. This is particularly concerning because before the Smith Plaintiffs withdrew their brain damage claim, they focused heavily on Paul Smith’s possible injuries.
Second, any testimony regarding brain damage would be nothing more than inadmissible speculation. Dr. X.’s proposed testimony not only speculates about the cause of any brain injury, but further speculates about the injury’s very existence. In California, it is well-settled that expert testimony stating that there is “some theoretical possibility” that a particular act caused a particular injury is insufficient to establish causation. See, e.g., Jennings v. Palomar Pomerado Health Sys., Inc., 114 Cal. App. 4th 1008, 1118 (2003); Jones v. Ortho Pharmaceutical Corp., 163 Cal. App. 3d 396,402-03 (1985). If an expert may not speculate as to the cause of an injury, he certainly should be excluded from speculating as to the existence of the injury itself. (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.