(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
B. It was an abuse of discretion for the court to allow remote, irrelevant but highly prejudicial testimony to be admitted concerning Chance’s ten-year-old traffic accident and hospitalization. (C.C.P. section 657(1))
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will … (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Ev.C. § 352.
Defendant argued and the court ruled that the relevance of this information went to the veracity of the Chance but this analysis is flawed in two ways:
First, Ms. Chance’s “veracity” was never in issue. No fact or contention at trial was supported by her testimony and was never solicited by either party. Because of her brain injury and retrograde amnesia, she neither testified as to how the accident happened nor to the nature and extent of her injuries. A fortiori, both sides extensively tested her for signs of attempts to game the mental impairment evaluation process. On all occasions she passed with high scores for veracity. Brain damage is a significant part of Chance’s consequential damages as presented by multiple eminent mental health care professionals including defendant’s own designated neuropsychologist expert, Dean C. Delis, Ph.D., Professor of Psychiatry, UCSD School of medicine. The fact of her brain injury was also evidenced just days after the bus accident at the brain injury clinic referral in the initial emergency hospitalization discharge records. As such, Chance’s cognitive faculties were objectively proven to be permanently impaired including memory and judgment without any reliance on her direct testimony.
Second, the underlying 10-year-old hospitalization and accident is very remote in time to the events before the present court and unrelated to any injuries represented to be resultant of the pedestrian vs. bus collision of 2006.
Ordinarily, remoteness of the fact to which the evidence relates from the main fact in issue affects the weight of evidence rather than its admissibility. A fact may, however, be so remote in time, or in its connection with the main issue, as to render evidence thereof incompetent in particular instances. Whether evidence is too remote is to be determined by the trial court, which is clothed with wide discretion in that regard, but the remoteness may be so great that admission of the evidence must be regarded as an abuse of discretion. (31 CAJUR 3d, Evidence § 172.) (See Part 4of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.